OK so let’s review the big picture here, namely, the 8 counts decided.

Bishop McDonnell was largely shot down trying to reverse the designation of OLOH as a historic building. Strangely, throughout the 180 or so pages the RCB filed in the lawsuit, neither McDonnell nor church lawyers ever got around to accepting any part of historic preservation, or acknowledging its worth.  Apparently, as a cultural value, it simply doesn’t exist for them. This is arguably a philistine attitude, and one that is clearly not shared by the majority of the Catholic people.

Another weirdo thing is that none of the Bishop’s arguments relied on contested facts (he was going for summary judgment all the way). Apparently he thought that everyone in the Federal courthouse would just fall down in submission when he (or his proxy, John Egan) walked into court.  As we know, it didn’t work out that way.  Now, we ponder why.

In this post we look at the highlights for each of the 8 decided counts. In the next post (Holy Smoke 5) we look at the doctrine of so-called “church autonomy” and learn where it came from. Hint: it's more recent than you might think!

In the post after that (Holy Smoke 6), we begin looking at the distinction between the corporate Diocese of Springfield and the canonical Diocese of Springfield. Hint: there is a LOT OF SMOKE in this area. For example, it is clearer and clearer that when you look at local church problems such as parish councils (or lack of them), restrictions on free church speech, arbitrary exercise of power by the hierarchy at the lobbying/state legislature levels which all but ignores the laity, and so on, that the influence of corporate governance on the Catholic church is gaining, and as a result the canonical and communitarian influence is ebbing.

Where does this tendency mean, and where does it lead? That is what Holy Smoke 6 will be about.

Now, to re-cap, here are the decided counts, followed by the judge’s reasoning:
Count 1. Free Exercise of Religion, Establishment of Religion, Discrimination Based on Religion (Federal):

“First...Plaintiff offers no support for its allegation that Defendants passed the Ordinance with an improper motive. Second, it is unclear how, if at all, the Ordinance advances or inhibits religion. Plaintiff’s only conceivable argument is that denial of a certificate of exemption would inhibit religion, but that certainly does not appear to be the Ordinance’s “principal or primary effect.”...... Third, regarding the “excessive entanglement” prong, the only ripe argument available to Plaintiff is that the mere requirement to submit a plan for review would transgress Lemon. Based on the authorities already cited, this argument, if accepted, would exempt church property from all zoning limitations and is simply not sustainable....”

my comment: In a commentary on the then hot issue of the day in 1967, John Courtney Murray, S.J., said:
“The right to religious freedom is itself inalienable. Its exercise, however, is necessarily subject to limitation in particular cases. “Conduct,” said the Court in the Cantwell case, “remains subject to regulation for the protection of society.” Or, in the words of the Declaration on Religious Freedom [the Vatican II document], society “has the right to defend itself against possible abuses committed on pretext of freedom of religion. It is the special duty of government to provide this protection”.

Apparently, Bishop McDonnell never learned this concept in school. If he had, it would have saved him from trying to impose the will of the church hierarchy where it clearly did not belong.

On page 8, the judge did not accept the argument that the control flowing from the ordinance was inimical to the Bishop. The judge found the Historic Districts Act to be neutral. Thus, the Bishop’s main contention (that the RCB was not subject to the Act) was defeated.

The Bishop’s strategy would appear to be: if you don’t like the law, get rid of the law. In retrospect this first count was an attempt to gut the Historic Districts Act throughout the Commonwealth by asserting a new claim for the superiority of religious law over civil law, a prospect that seems not only unlikely but ridiculous. It raises the first question about the sincerity of the complaint.

On page 35 the judge explained the need to corral the Bishop’s assertions by writing that “anything contrary would give carte blanche”, thus recognizing a classic distinction between belief and action. The Bishop’s complaint consisted entirely of his beliefs that harmful actions have been taken, are being taken, or will be taken against him, without offering any evidence that these beliefs have any basis in fact.

Count 2. Free Exercise of Religion, Establishment of Religion, Discrimination Based on Religion (State):

 “While Massachusetts law grants broader protections to Free Exercise plaintiffs than federal law.....here the alleged burden on Plaintiff’s religious exercise was minimal and, thus, does not establish a cause of action under state law”.

my comment: when it comes to state standards, the Bishop’s legal representative are fond of quoting Desilets (1994), which rejected the Smith standard.  The implication is always the same: that the constitution of the Commonwealth is somehow different than the constitution of the U. S.  However, the underlying dynamics of Desilets are quite different from the present case. 
The Desilets plaintiffs were Roman Catholic landlords in Franklin County who objected to co-habitation by unmarried singles. The case hinged on whether it was fair for prospective tenants to be discriminated against by the Desilets’ based on the latter’s religious beliefs. Thus, the conflict was between a sincerely-held religious belief and the civil rights of individuals to secure an apartment in the open market without discrimination based on marital status.
The OLOH case can easily be distinguished from Desilets. The judge found no sincerely held religious belief of the Bishop that would countermand the law of the land as expressed in the Historic Districts Act ratified by the Massachusetts legislature.

Count 5. Violation of Equal Protection (Federal): “Because Plaintiff has failed to produce any evidence of unequal treatment, Defendants’ motion will be allowed as to Count Five". (emphasis in original)

Count 6. Violation of Equal Protection (State): "Because Plaintiff has failed to produce evidence of unequal treatment, Defendants’ motion will be allowed as to Count Six".

Count 7. Violation of Due Process (Federal): "Plaintiff has not explained how the Ordinance deprives it of life, liberty, or property. See U.S. Const. Amend. XIV. Thus, Defendants’ motion will be allowed as to Count Seven".

my comment: I call this series “3 strikes and you’re out”. It is outrageous that Bishop McDonnell was willing to spend my money and the money of all other parishioners in the Diocese to find out if he could get away with breaking historic preservation laws. Worse, Mr. Egan was apparently urging him to take this action, and yet went into court woefully ill-prepared. Tell me again — why are we paying these people?

Count 8.RLUIPA, Discrimination:

“First, it is not clear how such considerations [the purported appeasement by historic commissioners toward parishioners opposed to the closing of OLOH] demonstrate discriminatory animus. Second, Plaintiff presents no evidence to substantiate its claim that these considerations played a role in the Commission’s decision to propose this Ordinance to the City Council. Third, the Commission’s report is replete with information justifying its decision based on rational, objective criteria. Consequently, there is no genuine issue as to whether Defendants harbored some form of discriminatory animus in passing the Ordinance. . . . without such evidence, Plaintiff’s argument fails, and Defendants’ motion will be allowed as to Count Eight".

Count 9.RLUIPA, Substantial Burden: “Plaintiff has not shown that the administrative burden thrust upon it by virtue of its property’s inclusion within a historic district was anything more than an inconvenience. . . Here, it is unnecessary to decide what constitutes a “substantial burden” because the burden imposed by complying with the Historic Districts Act is, on the undisputed facts of record, de minimis….Because this claim falls far short of the standard . . . Defendant’s motion will be allowed as to Count Nine”.

Count 10.RLUIPA, Unreasonable Limitation: “Plaintiff offers no extended argument regarding…[unreasonable limitation]… in its  Memorandum . . . and for good reason: nothing in the Ordinance in any way “limits religious assemblies, institutions, or structures within a jurisdiction.” Thus, the provision is clearly inapplicable to these facts, and Defendants’ motion will be allowed as to Count Ten”.

my comment: Another chance, another 3 strikes and again you’re out. Unbelievable! At least after an equally disastrous start, the Red Sox finally won a game!

Count 11. Violation of Civil Rights: “Because “a municipality is not a ‘person’ covered by the Massachusetts Civil Rights Act,” . . . and because all claims against the Individual Defendants are dismissed, Defendants’ motion will be allowed as to Count Eleven."

my comment: This was actually more important than it looks. Yes, church lawyers should have known that municipalities are not “people” and therefore that the Massachusetts Civil Rights Act did not apply. But more to the point, the Bishop’s insistence that his “civil rights” were being violated (when in reality all this was about buying and selling land) is a slap in the face to the genuine and vital issues of discrimination faced by minorities every day all across the Commonwealth. The Bishop should be ashamed of himself for signing off on this one.

More egregious, he allowed Egan & Co. to go after the individual city councilors, as well as the city proper. This threat to the financial well-being of middle-class homeowners amounts to nothing less than bullying.  How disgraceful, and how very far from gospel values. Fortunately, as we see here, the judge lost no time in dismissing the threat to the individual councilors outright.

--the end--