during Marci Hamilton's important essay about church autonomy, she notes that the phrase stems from a 1981 article by Douglas Laycock (Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy).
the Laycock article is available on JSTOR.
the permanent link is:
http://www.jstor.org/stable/1122203
HOLY SMOKE. 5.
As we’ve seen, once you begin to brush away the clouds of HOLY SMOKE, there are really two Dioceses of Springfield. One is canonical, and one corporate. It’s probably going a little too far to call the corporate Diocese the “evil twin” of the People of God, but that’s how it must appear to those on the receiving end of the corporate hardball legal tactics hatched on Elliot St. — disenfranchised parishioners, gays, and sexual abuse victims are three groups that come to mind.
Certainly there’s a place for the body politic known as “corporate sole” – for financial convenience, if nothing else. Even though corporate sole is not entirely compatible with canon law, it is not necessarily a bad idea. And, the goals and the enlightened self-interest of Bishop McDonnell must be toward unity and coherence of the two Dioceses.
And yet, time and again, he undermines this goal. Power as a governing value has no place in the canonical Diocese, but the opposite seems to be true for the corporate Diocese. The corporate Diocese is often used as a blunt instrument against those who disagree with the Bishop. Just ask Fr. Jim Scahill (fired from Presbyteral Council). Better yet, ask Christine Judd (forced out of employment at Cathedral High School) or Kathy Picard (disinvited from consideration for the St. Joseph Medal, also at Cathedral).
When we look at the available evidence, we see the Bishop working against an emerging role for women, against a more just civil society, and even (and most egregiously) against gospel values in favor of centralized, corporate ones.
That he is willing to do these things to assert control among the People of God as well as use them toward civil society is a sure sign of corporate power gone amuck. Indeed, the Bishop seems to believe that if he had to rely on gospel values to negotiate with the People of God (values such as transparency, truth-telling and collaboration) he could not do his job. This is the only logical explanation for why the "pastoral planning" program was carried out the way it was, with minimal input (interference) from the people it purported to serve. It is a shame and a scandal that even at the very heart of the church - pastoral work among believers - gospel values are allowed to be shunted aside in favor of a centralized preoccupation with power.
Much of Bishop McDonnell's intent is shrouded by secrecy, and that is one reason we need to learn as much as possible from his lawsuits. In these public documents the whole range of cause and effect and intent is on display, though cloaked in legalese which can be so dense that even lawyers do not pretend to understand it all.
The first thing to note about these torts is that they really are the Bishop’s lawsuits. The decision “to sue, or not to sue” is untroubled by any meaningful lay input. Nor does there seem to be any review, discussion, or oversight in place when it comes to reflecting on the Bishop’s legal adventures.
And, there is much to reflect on, from the stylized "poutrage" and shrill posturing of John Egan to his butchering of the English language. Does this man not own a spell-checker? How about a high-school grammar book? Not to mention far more serious matters that call into doubt how moral he and the other advocates are, even if the tactics they use are perfectly legal.
Then, too, even in a secular court there are safeguards and rights that a religious organization can make use of. Indeed, Judge Ponsor notes on pg. 3 of his decision that the RCB has the same rights and obligations as other corporations, thus putting them on a secular footing. But despite this, the Bishop (or maybe it's just Egan) seems to be either unaware of these rights or not able to use them. It’s as if the Bishop is showing up to a basketball game with a football. To play basketball, he needs to show up with a basketball.
Instead, he uses what we might call “churchy” arguments, often dependent on a legal doctrine of church autonomy. These are based on a belief that the church is different (better, higher, more special, and so on) than other plaintiffs. Never mind that this belief and that canon law itself carry no weight in civil courtrooms, these are the arguments nevertheless.
When it comes to a consistent strategy, it’s not so much that the Bishop argues that the laws of the land have been applied incorrectly to the church. It’s more that the laws of the land do not apply. We see this distinction in nearly all of the RCB lawsuits and legal maneuvering, with the exception of Mintz. Mintz was different on two counts: the church and state joined forces (they were both sued by a group of homeowners). The other thing about Mintz is that it was a RLUIPA case and decided on the merits, or facts, of a zoning dispute.
In contrast, most other cases have involved claims that hover above the facts – they have been about how the laws of the U.S. supposedly do NOT apply to the church. This general way of thinking is known as “church autonomy”.
Most Americans have a vague notion that church autonomy is 19th century boilerplate and flows from First Amendment rights that enforce a separation of church and state, each sovereign in their own spheres. In fact, “church autonomy” as a phrase and doctrine is of much more recent vintage. It was coined by Douglas Laycock in the 1980’s. Follow this link for an outstanding analysis of why “church autonomy” is bogus.
Trust me, it's worth it!
The Waterloo for the So-Called Church Autonomy Theory
After you read Marci Hamilton’s brilliant account of why “church autonomy” deserves to be stripped of its air quotes forever and remaindered into the dustbin of history, join us for:
Holy Smoke! Part 6, as we trace the complicated path of why Bishop Timothy McDonnell, aided and abetted by Smilin’ Jack Egan and his merry men at Egan, Cohen and Flanagan, continues to think that he is above the law, how this perverted view and other misshapen corporate values have infiltrated other areas of the diocese, why they can do nothing other than sicken and weaken the Catholic enterprise in Western Massachusetts, and last, but not least, what a solution to this whole mess might entail.
Thankfully, despite the doom, the gloom, the holy smoke, the poutrage, the hypocrisy, the denial and the shame, there is still a solution.
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