“Church Autonomy” 2

 “Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy,” by Douglas Laycock. Columbia Law Review, Vol. 81, No. 7 (Nov., 1981), pp. 1373-1417.

“Freedom to be a Church: Confronting Challenges to the Right of Church Autonomy,” Mark E. Chopko and Michael F. Moses. Georgetown Journal Of Law & Public Policy Vol. 3 (2005), pp. 387-452.

“The Waterloo For The So-Called Church Autonomy Theory: Widespread Clergy Abuse And Institutional Cover-Up,” by Marci A. Hamilton. 226 Cardozo Law Review, Vol. 29:1 (2007), pp. 225-245.

We begin, as we should, with theology.

One of the striking features of Bishop McDonnell’s sermon on the occasion of the closing of St. Stan’s in Adams at the tail end of 2008 was the image that he painted of how the Catholic church is supposed to work.

He said that God is always reaching down to his church with love, in a vertical fashion. And that we take that love, and bring it to others, in a horizontal fashion. And, both of those dynamics are important. And, together, they make the sign of the Cross. It’s not a bad analogy because it includes community as a core element of the faith, which it certainly is, without slighting the divine in the least. Here is the relevant portion of the Bishop's homily:

"Closing" Mass Homily at St. Stanislaus Koska, Dec. 28, 2008
Celebrant: Most Reverend Timothy McDonnell

 . . . This is - without doubt - a beautiful church. This is a church that was put together with the pennies and the nickels and the dimes of the great-grandfathers and your grandfathers and your grandmothers and so many members of your family - this is a church that has seen joys - and sorrows - this is a church where baptisms have taken place, first communions, confirmations - this is a church where marriages have been performed and funerals have taken place. This is a place that has memories that can never be erased. But, the key to it's being a church is the community that gathers and not because of the walls and the great stained glass and the wondrous decorations and those magnificent chandeliers - no - what makes this special is what happens on the altar - what makes this special is the Eucharist.

Because, if there were no Eucharist, all the rest would be meaningless. We gather because Christ has told us to be one, holy, Catholic, and apostolic community of faith - we gather so that the gift of the Eucharist might be given to us. We gather that Christ may be made present here on the altar - on any altar - anywhere - because it's what happens at that altar that is key.

Everything else - everything else - is secondary.  And, what happens on that altar means that we can receive Jesus Christ in Holy Communion - and because we can receive it, our relationship with God - our relationship from earth to heaven - our vertical relationship - is strengthened. And because we can receive that Holy Communion, the body of Christ, our horizontal relationship - our relationship with all our brothers and sisters - is strengthened - and if we think of what the Eucharist does, to make the vertical and the horizontal one - it gives us the cross - and at the heart of the cross, is Jesus Christ.

On the last Sunday of Advent, the Sunday before Easter, we heard the great gospel - and what did it say? On what will Jesus judge us when we come before him? He will judge us on how we treated one another. He will judge us on how we lived up to his commandment - to love one another, as I have loved you - he will judge us on whether we followed through on "...by this you will know my disciples - by the love you show one another...." According to that gospel, that is the key factor on which we all one day have to face God.

We are one community of faith.

Adams is not what it once was - we know that - It's interesting that in all the debate, and in all the discussion that's been going on, very few - only a handful - have disagreed with the fact that only one church is needed in Adams. The question has been - which one.  And that is really what it is centered around - which one shall it be - and there it is. And, it's hard.

I'm called to the stewardship of a diocese, that, in the year 1980, had 360,000 Catholics. But, in the year 2008, has 221,000 Catholics - we've lost 140,000 - we've lost over one-third of our Catholic population, since 1980.

You know yourselves - 50 years ago, the change started in Adams - when what is now Berkshire Hathaway moved away. I googled that - but I found a very interesting addition - Berkshire Hathaway moved in 1958. Parentheses. (Before Warren Buffet had bought it.) The idea being, he didn't want to be held responsible for what happened.  Because what happened?

It started a change. It started a chain reaction. It started more and more jobs disappearing.
Of course then G.E. went, and so many of the others around.  We know, that so many of our young people.....have had to do..... what?

Go elsewhere - so they have homes for their families.  So, we've come to a point where - in the city of Adams - where once there were 3 thriving churches - we need one church community working one with another.

Now, it was an interesting thing, but in the letters I received - and I think I've read almost every one, I may have missed some along the line - one of the things that kept coming up is that if the people from here would move two and a half blocks away - all would be lost - the tradition - the identity.  If that tradition - if that identity - could be carried over 6,000 miles across the ocean - why could not it be carried a few blocks away?

Why could you not take that with you - and one of the things I found in parishes, past parishes, that have consolidated and come together. There's a cross-fertilization that takes place - the ideas of one community are picked up by another - and new ideas added on - all of a sudden, there's a greater vitality that I have found in parishes - you can see that happening right now in Pittsfield.  It's only beginning, but it's there.

It's certainly happening up in Turner's Falls - it's happening in many parts of the diocese - we're gone through a two and a half year process - and we're halfway through - there's still five regions of the diocese - in which we have to make very difficult decisions - we shall - but certain things - are a given.

St. Stan's school, here, for example, the diocese has made a commitment to it - Sr. Jackie has done a phenomenal job. But there has been help needed. And over the past 5 years,  there's been scholarship monies, and some fiscal help for other purposes - the diocese has made sure that school has remained in the black.

I wasn't here when the diocese took over the school - but I've read the correspondence - one of the letters said it asked the diocese to take the school over - because it was a fiscal burden on the parish - I wasn't here - I don't know - but that was one of the reasons given back then - so, the diocese took it over - and, we will continue.

But, I have to ask, are we one, holy, Catholic and apostolic? are we one family in Christ? Are we not all Catholics, that part of one Lord, one faith, one baptism, and isn't the key to our existence, the fact that we have the Eucharist?

Much as I hate to say it, this is not the place where we celebrate that Eucharist.

We are to be a vertical people in our relationship with God - we are to be a horizontal people in our relationship with others. As communities of faith come together into one - I'm finding that the horizontal dimension - is becoming greater and greater - that there are new ministries and new outreach and new programs that can be undertaken by parishes because of the new vitality that does come -

And that there is greater outreach to our brothers and sisters because of the community of faith - that is willing to realize we are one, holy, Catholic and apostolic.  It doesn't take away the pain- any more than Mary's experiences relieved her pain.  But, she was told, "do not be afraid."

I give you a watchword from the patron of your parish. He said on the very first day of his papacy similar words - "Be not afraid". Be not afraid. Be not afraid.

As your ancestors crossed the oceans.  So, carry with you your identity.  Carry with you your visions. Carry with you especially the memories. Of all the wonders that are here.

And gather around the Eucharist, so that your own vertical relationship and horizontal relation may become even stronger. And the one Catholic community of Adams may become a shining light reaching out to our brothers and sisters in need. And responding to the challenge that Christ gave us "How - did you show your love?"

I'm sorry.  I don't have the news you were hoping to hear. But I do hope that you will find that God never closes a door without opening a window.  And His grace will lead you forth in your pilgrim path. As you become even stronger under the patron of Pope John Paul the Great.

It’s not surprising that McDonnell stepped away from too strong a statement on community — he was at that moment engaged in closing down the community of St. Stan’s. Although he did admit the central role of community, a close reading of this sermon shows that he qualified his admission by subjecting it to the overwhelming importance of the Eucharist. "...if there were no Eucharist, all the rest [including community, traditions of the local church, the building of a local church, your faith, your sacrifices, etc.] is meaningless". This sound wrong to me. I don’t think it’s proper to use the Eucharist as a theological weapon to crush and downgrade the idea of community.

The fact that the Eucharist is created, distributed, and controlled by the clergy, and by the clergy only, is of great importance to his argument. Certainly the Bishop doesn't mean to reduce the Eucharist to the status of a magic act. And yet, that is what his argument leads to. And in fact "distribution of the Eucharist" has been one of the core values of the Bishop's parish-killing program. Fewer priests must mean fewer parishes, in his view. This explains the reshaping of the Diocese by fitting the numbers of parishes to the number of priests available.

From this it appears that the priestly structure of the diocese matters most to the Bishop, with both the laity and the concept of community bringing up the rear, at least when it comes to decision-making. Essentially, the priestly structure is not only elevated above the People of God, it replaces it. This formulation of the Bishop may help him to justify church closings, and he may believe it, but it is not sound Catholic theology.

Fortunately, the closing turned out to be an un-closing, thanks to the magnificent work of Laurie Haas, Fran Hajdas, Hank Tomkowicz, and so many others. Today, some two and a half years later, and somewhat miraculously, St. Stan’s is one of the strongest and most admired parishes in the Springfield Diocese. In part, this is because the Vatican has been won over. The Congregation for the Clergy has reversed McDonnell's plan, and ordered the church to be re-opened as a house of worship, a decision that McDonnell has appealed. I think I understand why this is necessary. After all, McDonnell’s autonomy within the Diocese has been put into question. It’s amusing to try and imagine this conversation on Elliot Street: “What is wrong with these people in the Vatican? Don’t they know who we are?”

As I said, it was necessary for McDonnell to retreat from the community analogy, since the sermon was designed to nail down the lid of the coffin.  And, just as Fr. Boyle did in his own sermon during the Midnight Massacre a few days before, the Bishop needed to drive the point home and justify hierarchical authority. He needed to emphasize the vertical aspect: the authority supposedly handed down from God to Jesus to the apostles to the pope to Timothy McDonnell.

Fr. Boyle's attempt a few days earlier had disastrous results. The holy sacrifice of the Mass on Christ’s birthday became a bully pulpit for Boyle’s attempts to squelch any remaining opposition to the impending closure. He said, in so many words, that “we’re talked, we’ve discussed, we’ve blogged . . . and now it’s time to get in line”; “believe, or leave”; and “there’s the door”. Oh, and he also informed the congregation, of which I was a member, that "I know what you're thinking". Those who were there will never forget it. It was without question the most disgraceful performance by a cleric on the altar that I have ever witnessed.

Being a Bishop, McDonnell was not quite so crude as Boyle in his insistence on hierarchical authority, but the hints about autonomous control were there. He soon found it necessary to retreat from the implications of the community model, and back to the realm of the ceremony, the centralization, the I-know-what's-best-for-you, the self-entitlement, and the self-importance — in a word, to the clericalism — that lurks behind so much of what corporate sole does. Surely much of it, though it seems egregious and mean, is done in desperation, or out of fear, or because they honestly don’t know what else to do.


The heading of this post refers to three important essays about church autonomy. Marci Hamilton’s 2007 paper claims that the outcome of child sexual abuse lawsuits has stripped the church of its defenses for church autonomy. She suggests that if the doctrine of church autonomy does not apply in the cases of abuse, that it does not apply in many other instances…perhaps most instances…where the church comes into conflict with civil society.

Anticipating this charge, the lawyers for the USCCB (United States Conference of Catholic Bishops) had prepared a long brief on the subject in 2005. This sums up previous successful claims, tries to validate them as well as possible, attempts to re-write the unsuccessful claims, and looks forward to new avenues for expanding the doctrine. This document is perhaps the greatest single contribution to the bishops' arsenal for validating claims for autonomy from civil law.

Both these papers owe a large debt to the 1981 paper by Douglas Laycock. As Hamilton points out, Laycock's paper was the first time to suggest “church autonomy” as a legal doctrine. Laycock was prescient.

His brief turns to the founding fathers and to the First Amendment to find justification for greater freedom for churches, not as a new right, but as a right implicit in the Constitution. His essay has been built on ever since and has resulted in the elaborate constructions of the USCCB, the Tea Party-like calls for “deregulation of religion” embodied in RLUIPA and other efforts to avoid Smith and Lemon, and many more lawsuits and legislation, all designed to carve out more space for religious organizations to avoid the reaches of civil law.

In "Church Autonomy 3" we begin by taking a close look at Laycock’s original formulation of “church autonomy”.

“Church Autonomy” 1

OK, long time away from writing here. 

The current flare-up with MD in Holyoke is yet another instance in which the authority of Bishop McDonnell has been challenged, and once again, it is for just cause. Victor Anop, Peter Stasz, Jeanne Boynton and other parishioners have many good points and many unanswered questions. They also have much love for the parish, and much determination.

They will need it. It is a hard road they have elected to travel, but it is worth it. As someone said: “My yoke is easy and my burden light”. We should not doubt this in the long run — though, in the short run, elders huddling on a hard pew at 2 a.m. may be forgiven for entertaining a few doubts!

It points up once again how backwards the Diocese of Springfield remains. Once again, instead of meeting with people and working toward a creative solution, the Bishop hides. In lieu of a response, he sends underlings.  The problem is, the underlings are told to follow a script. Not being given enough clout to respond, they can only react.

This is a time-honored corporate move, but one that does no honor to a Bishop. It attempts to defuse the problem by shifting attention. It is no wonder, then, that when Mark Dupont arrives on the scene he evades the questions and seems ready, and even eager, to heap blame on the parishioners.

Once again, we have the spectacle of Mr. Dupont trying to baffle the parishioners and the press with his bullsh**. This always ends badly: he soon ties himself into knots. It is humiliating to see how willing Mr. Dupont is to compromise himself.

The Bishop appears to have only one answer to the questions raised by the parishioners: “case closed, let's move on.”  But, this attitude has led him into a blunder. For the last 6 months or so, Bishop McDonnell has incorporated preemptive strikes into his decrees. Ostensibly, this additional writing shows that proper consultation and due process was followed. See the Catholic Mirror diocesan magazine for May/June, pg. 26.

It is not clear that these additional reassurances were stick in with the goal of forestalling Vatican objections?

This tactic has come back to bite McDonnell, big time. The  mistake was to include the claim in his decree that the Holyoke building inspector had signed off on the condemnation of the steeple, when the building inspector, in fact, had done no such thing. Furthermore, the building inspector subsequently signed an affidavit to confirm that he had done no such thing. Ouch.

Affidavits may not mean much to ecclesiastical authorities, but civil authorities have a different opinion.

So do law-abiding American citizens, including rank-and-file Catholics, who recognize a clumsy corporate move when they see one. That is one of many reasons why MD parishioners are more highly motivated than ever.


I’m glad to report that I’ve been productively studying the underpinnings of  the “church autonomy” doctrine and that the next effort at this blog will be to explain that misnomer. I believe that the study of “church autonomy” has a lot to teach Catholics.

The concept of “church autonomy”would appear to be self-explanatory. After all, is there not a separation between church and state in this country, and is it not true that churches should be free to be churches?

Both of these statements are true enough. Separation implies respect (or at least tolerance) between church and state; and churches rightfully claim freedom to do as they wish to further their objectives, subject to common sense.

But, that’s just the problem. It is not common sense to permit a church to withhold medical care from an adherent’s child because the church is a faith-healing church and the child has cancer. To state the obvious, society has a vital interest in the well-being of the child, irrespective of the religious views of the parents.

The problem is not that the church believes that faith is a better healer than chemotherapy or radiation. They can exercise their believe all day long and no one would object. It’s when that belief is codified into action, and when that action is harmful to a human being, that common sense realizes: “wait, this is wrong”, and must step in.

Crackpot claims about church autonomy are not limited to Catholics (though John Egan has brought it to a new level by claiming church autonomy in the bikepath controversy in Northampton). The Mormon church has invoked this defense for a pedophile who was allowed access to children. He was "forgiven", and this First-Amendment-protected forgiveness was a shield against government prosecution. So the argument went, anyway. Fortunately, justice prevailed. See the New York Times review of The Sins of Brother Curtis.

The problem with “church autonomy” is the autonomous part, not the church part. Once you begin to track the arguments for and against this doctrine, it becomes a surprisingly rich field of study.

“Church autonomy” emerges as not only a key concept in church/state relations, but also as perhaps THE key. Once you begin to notice how many court cases hinge on the doctrine, or refer to it, it becomes clear how central it is to the church’s self-understanding. These are weighty issues, and we have seen these types of conflicts before. For example, in the run-up to WWII, when Nazi Germany and the Vatican suspended diplomatic relations, each gave the same reason: that the other was impinging on their right to autonomy. Autonomy emerges as an essential attribute to those who seek to maintain and increase their power.

This is true of churches in the U. S. in general, but for obvious reasons, we concentrate on the Catholic faith here. And, it must be said that through the USCCB and chief counsel Mark Chopko, the bishops of the U. S. have made a particular claim to “church autonomy” that is very well-articulated — and aggressive.

And all of that is all by prelude to suggest that the most important lesson of the “church autonomy” doctrine may not be in the civil legal arena at all. The most important application of what it does or does not mean may be within the church. Nearly every legal argument I have seen supporting the validity of “church autonomy” can be made with equal force for supporting the pre-Vatican II internal makeup of the church.

“Church autonomy” in the pure civil form posits a belief that the Catholic church has a right to its own governance that is so sacred, and so complete, that no "outsider' (even civil law) can so much as question it without transgressing the First Amendment — in a word, the decision-making of the church is absolute.

How different is this from a strongly held clerical belief that the laity cannot inquire into the hierarchy's self-governance without transgressing canon law?

Let us remember that the latter was the rule of the church prior to Vatican II, as codified by Pope Leo XIII, among many others. Leo drew the distinction between pastors and flocks, leaders and people, in this way:

"The role of the first order [clergy] is to teach, to govern and to lead men in life; to impose rules. The duty of the other [laity] is to submit itself to the first, to obey it, to carry out its orders and to honor it."

Well said, Pope Leo! But, that was a long time ago. Meanwhile, the 20th century, which included Vatican II, happened.

The meaning of the “church autonomy” doctrine (and where it came from); the many ramifications of it; the way it has shaped legal theory; what it shows about the aims of church officials vs. civil authorities; and, most of all, how the doctrine of "church autonomy" may be applied to make more sense of clerical/lay relations — these are the topics ahead.

Document dispute over Holyoke church closing

CBS 3 Springfield (WSHM)

Jul 01, 2011 

Two documents are creating even more turmoil between members of Holyoke's Mater Dolorosa Catholic church and the Springfield Diocese. The diocese closed the parish Thursday because of reported structural damage and significant debt.
CBS 3 Springfield's Natalie Tolomeo is digging deeper and is asking tough questions after she obtained a sworn statement regarding the parish closing. The diocese questions the affidavit and some parishioners are questioning the diocese's response.
"Myself and other people have lost faith about how this situation is being handled," says Victor Anop, a lifelong member of Mater Dolorosa.  He and other parishioners say the Springfield diocese decision to close the church is based on a lie.
The official church document stated that a third-party engineer and Holyoke's former building inspector were at the Maple Street church to discuss structural damage. In the document, the diocese says the city official received the engineer's findings in a report, and agreed the structure was unsafe. However, Mater Dolorosa parishioners gave CBS 3 Springfield a sworn affidavit from the former Holyoke building inspector, saying the diocese was incorrect.
According to the affidavit, the building inspector did meet with the third-party engineer outside of the church and discussed the structure. But the affidavit goes on to say that the building inspector never received the report nor did he agree that the structure was unsafe.
Mark Dupont, spokesman for the Diocese of Springfield, was unaware of the affidavit accusing the diocese of falsehoods until CBS 3 Springfield showed him Friday afternoon. After reviewing the sworn statement, Dupont said it was incorrect and provided CBS 3 Springfield with an email as evidence to accuracy of the diocese.
According to Dupont's forwarded email, William F. LaBroad, finance officer for the diocese, emailed the former building inspector on March 30, the day the diocese says he and the third-party engineer examined the church from the sidewalk. The email states:
"Thank you for taking the time to visit Mater Dolorosa this morning. For your records, attached is a copy of the partial report of Engineering Design Associates, Inc. pertaining to the bell tower of the Church. As (Rich Wilk, the diocesan building consultant) stated, the complete report is in progress along with review of the other Catholic Churches in Holyoke."
The forwarded email CBS 3 Springfield received did not include and attachments of an assessment report. Mater Dolorosa parishioners don't believe the building inspector ever received the report. Anop says there is no proof.
"[The diocese] may have claimed it sent [the report], but there is no way they can say [the former building inspector] received it," he said.
Anop and other parish members have been asking to speak with Bishop Timothy McDonnell privately because they have many unanswered questions.  Since the last mass was held at Mater Dolorosa Thursday morning, parishioners have been holding a vigil, a peaceful protest full of prayers, in hopes that the diocese will reverse the decision to close the parish.
Parishioners have an appeal pending with the Vatican.