HOLY SMOKE. 2.
I was genuinely surprised to learn that the Bishop is appealing the OLOH decision. See this story by Stephanie Barrie: Springfield Diocese Files Federal Appeal
As we shall see, the Bishop's complaint was thoroughly shot down. I wonder where he'll find a foothold for appeal? Or, will it come on procedural grounds? Anyway, we'll certainly report news on this front.
We said earlier that although there were 12 counts in the Bishop’s complaint, only 8 were decided. We now explain this discrepancy.
The judge spends half his 56-page decision laying the groundwork with a potted history of the dispute.
From pp. 25 to 44, he considers the RLUIPA counts (8, 9, and 10). The judge explains on pg. 25 that he considers these first since RLUIPA law is based on constitutional intent. He saw no need to reinvent the wheel by starting with the freedom of religion/establishment issues in Count 1. As a result, the constitutional counts largely resolve themselves.
From page 45 to 52, he considers other aspects of the First Amendment counts, and explains why “individualized assessments” does not apply here. The remaining State counts (2 and 6) fail because there are no genuine issues. The same is true for Federal counts 5 and 7, which are disposed of in pp. 53-55.
Counts 3 and 4 assert that sacred artifacts count as symbolic speech, but these counts were not ripe. Count 11 (civil rights) was dismissed on procedural grounds (the Bishop wanted to sue individuals as well as the City but claims against individual officials were dismissed as redundant). Count 12 was not a genuine claim, but instead a request for summary judgment.
Thus, eight claims (1, 2, 5, 6, 7, 8, 9 and 10) were disposed of. Since there were no material issues of fact, each was decided by applying existing law – which indeed fits the definition of summary judgment. We will look at each of these in turn. These resolve into three groupings:
first amendment claims (1, 2); other constitutional claims (5, 6, 7); and RLUIPA claims (8,9,10). No extra charge.
Before we do that, let's glance at 3 and 4, the freedom of speech claims found to be unripe.
This is the one area where the Bishop did manage to raise some potential doubt. The question is: what happens when and if a properly filed plan is submitted to the Historic Commission? Suppose that the Bishop wants to remove a sacred artifact for use elsewhere (stained glass comes to mind). In that instance, there might arise for the first time a genuine issue of fact. Namely, the relative values of the artifact (the historic value of the stained glass vs. its religious value).
Many other artifacts mentioned in the complaint are unlikely to qualify for removal because they're too large. Indeed, the Bishop went so far as to call the church itself a “sacred symbol”, because it's foundation was poured in the form of a cross. The removal of the entire church to a different site would be, of course, a near miracle. It is unlikely that even this plaintiff could pull it off.
Though not as extreme, the same argument holds true for the stone friezes and columns, each of which must weigh many thousands of pounds. The Bishop claimed that if he could not move the sacred objects, church law dictates that they must be covered, or destroyed. Both these measures, according to the Bishop, would prevent desecration of the sacred objects. Let's take these one at at time.
The prospect of a fleet of concrete trucks pulling up on Armory St. to entirely obliterate some of these large symbols beneath a flood of putty-colored cement, though put forward with an air of earnestness by church lawyers, seems unlikely, if not downright bizarre.
The transformation of a lovely Italian Renaissance church to something resembling a side wall of a parking garage is painful to imagine. Ostensibly, the reason for this would be to prevent desecration. It may not have occurred to church lawyers or to the Bishop that the act of pouring wet concrete over irreplaceable historic artifacts may amount to the same thing.
Of all the exterior ornaments, only the stained glass and perhaps a few doors or door lintels would seem to qualify for removal to another worship site. Even so, considering the surplus of churches these days, it's doubtful that secondhand stained glass, even really good secondhand stained glass, is in high demand.
The other way to prevent sacred artifacts from desecration, according to the Bishop, is to destroy them, and he promotes this as a sound canonical solution. We can't help notice that if the church were sold to a third party, knocked down, and taken to a landfill, that would appear to be an equally sound canonical solution. Although he doesn't dwell on this possibility, one suspects that this result would please the Bishop greatly — not only would it prevent the church from desecration, it would enable the Bishop to sell an open lot in downtown Springfield. The phrase "ready-to-build" comes to mind.
There is some suggestion in church law that the mere selling of the artifact would work to "deconsecrate" it, without necessarily moving it anywhere, or knocking it down, but let's not get ahead of ourselves. As I said, these freedom of speech claims (based on the symbolic speech of the artifacts) were found unripe.
Above all, the successful prosecution of a freedom of speech argument depends on the inability of the Bishop to remove a sacred symbol — which inability is dependent on the rejection of a plan by the Historic Commission — which rejection is dependent on the submission of a plan by the Bishop — which submission is dependent on the acceptance of the need to file a plan by the Bishop. Circular logic, here we come and there we go!
No factually-based argument ever got started because of the posture of the Bishop that the Ordinance did not apply to him. Indeed, the very creation of the OLOH District by the City was offensive to the Bishop. This had repercussions.
This offense explains why Counts 1 and 2 were found ripe by the judge, even though Counts 3 and 4 (the substantive dispute about the sacred symbols) were not.
This left the judge no choice but to apply existing law, which resulted in the holding of Counts 3 and 4 in abeyance, and in the defeat of the remainder of the Bishop’s complaint.
The judge commented that since both sides were looking for summary judgment, their arguments sailed past each other like “ships in the night”. To the judge’s credit, he suggested at the end of his decision that constructive dialog was not too late.
Whether this latest news that the Bishop has decided to appeal the decision means a step toward constructive dialog, or something else, remains to be seen.
(to be continued)
email: email@example.com..... Robert M. Kelly