Before launching into part 6, we note that the news about the “ministerial exception” is flooding the internet. A ruling is expected (though not until 2012). This is an excellent opportunity to reflect on the disputed doctrine of church autonomy. What does it mean?
See sidebar for an important link:
the oral transcript from the Supreme Count, argued by none other than Douglas Laycock, whose scholarly article ““Towards a General Theory of the Religion Clauses...” (1981) kicked off the modern consideration of how and to what degree churches may excuse themselves from civil law some thirty years ago. From time to time we will post more links about this continuing issue on the sidebar, under the
Ministerial Exception heading. Now, back to part 6, which references Mark Chopko and Michael Moses’s “Freedom to be a Church: Confronting Challenges to the Right of Church Autonomy,” Georgetown Journal Of Law & Public Policy Vol. 3 (2005), pp. 387-452.
As we've seen, Chopko’s mission is a daunting one. He wants to carve out a space where the church may act with impunity; in this space, neutral laws will not apply; this space is called “church autonomy”.
Once again, it’s useful to point out that this is not “church autonomy” defined as a church governing, disciplining and defining itself, and doing all these things in communion with church members. On the contrary, this “church autonomy” is a weapon directed at non-members. It takes the entitlements which the church enjoys as a corporation and seeks to extend them.
Chopko begins by presenting his strongest constitutional claims:
“Church autonomy is rooted in specific constitutional guarantees – freedom from establishment, (4) free exercise, (5) freedom of speech (6)–and in the right of association implicit in these explicit guarantees (7). The First Amendment reflects a promise that a church may be distinctive; that a church may be different from secular entities and other churches; that the government may not impose upon a church criteria that define it; that a church may, free of government intrusion and interference, exercise and enjoy those characteristics that make it what it is–in short, a promise that churches can be churches.”
Chopko finds these guarantees rooted in the First Amendment and builds on them while admitting that they are never mentioned by name. But supposing, arguendo, that each of these markers (distinctive, different, etc.) are rooted in the First Amendment and do apply to churches, then they must certainly apply to the rights of individuals.
Yet, we do not speak of "individual autonomy" as an entitlement which overcomes the rule of law. And rightfully so, because it would lead to anarchy. The constitution might “reflect a promise” in the same way, that a person may be distinct from other persons and that government may not define what a person is — those are reasonable inferences — but they hardly amount to a license that would places an individual above the law. And “above the law” is exactly where the argument leads.
We have to ask, therefore, what is it about the church (a group of individuals) that would tend to allow it more rights than the individuals themselves? This is never made clear by Chopko. If there is a special license for churches, how is this license earned? Where does it come from?
All these entitlements for churches – that they may be distinctive, that they may be different, that they may be self-defined – are not tied to anything other than the gauzy generality that “the First Amendment reflects a promise” that it is entitled to these things. One would think that 65 pages would be enough space to present more information about this important promise, but it never appears.
We learn a bit later about some of the motivation for the paper:
“Simply put, if sensitivity to and protection of church rights and liberties does not keep pace with these developments–that is, with burgeoning government regulation and new litigation theories–churches will be left with little or no room to exist and function as distinctive entities.”
Here is the straw man. Like Laycock before him, despite the throat-clearing, the creative wordsmithing and the attempts to invoke the First Amendment as the first principles upon which his argument rests, Chopko at long last, has few tools at his disposal. And the main point is always the same, as it was with Laycock: in one word: reaction.
It’s not so much that “church autonomy” exists as that it has been called into being by “burgeoning government regulation and new litigation theories.”
Like Laycock, Chopko justifies autonomy as a corrective measure. But, it is specifically tied to the "deregulation" and “secularization” arguments. It is beyond the scope of this paper to say much about these. All of us have seen the rise (and now, apparent fall) of the Tea Party, the noisy anti-tax and anti-regulation advocacy group. The latest polls show that most Americans view the group unfavorably.
Beyond that, the whole trend of deregulation has caused great harm, whether applied to the environment (see the pushback on EPA regulations that has resulted in ridiculously low mpg requirements and destructive strip-mining), the banking industry (see world-wide financial meltdown, explained in the film Inside Job), or in the corporate tax structure (see unconscionable tax breaks and loopholes, now under scrutiny).
The secularization argument is hard to follow, but there appear to be sections of the populace who believe that the governments are bent on setting up an “anti-religion” by the name of secularism. Opponents of secularism fear that the growth of “non-religion” will cause the genuine article to sicken and die. How the absence of religion can qualify as a new religion is a conundrum that we will leave to the anti-secular forces.
Pg. 391, Chopko expands on Laycock's preference for institutional rights over individual rights:
“...the religious freedom of our churches is as serious a component of our constitutional heritage as individual religious liberty because, without the former, the latter would have little meaning. What would remain of an individual’s right to practice his or her faith if the faith community’s rights to exist, worship, preach, teach, and minister to its members and to society were not guaranteed equally? How could religious faith continue to be exercised and passed along from generation to generation outside its communitarian context? A religious tradition is always learned and practiced in some community of faith and worship…Church autonomy is threatened today by creative litigation theories and invasive regulatory mandates.”
This is a defense of community as the bedrock of religious heritage. How fortunate we are that the bishops’ lawyers recognize this and defend the community aspect of Catholicism. And yet, how often, in our parish life, have we seen the bishops act in the opposite direction — moving quickly to squelch autonomy precisely because it is springing up from the community?
The lesson must be that these religious values expressed by Chopko are highly changeable – and might be more accurately described as stalking horses which hide political or corporate values. The bishops’ spokesmen say these values deserve protection. But we cannot forget that when these same values are expressed through individuals in parishes, they are prone to be ignored. The proof is abundant. It consists in how bishops routinely ignore parish councils and the dictates of Vatican II about lay participation in church decision-making.
As a result, this argument self-destructs. Chopko cannot pretend that the viability of religious faith depends on the well-being of the corporate structure that the bishops administer in each diocese. The reserve is more likely to be true. In any case, religious faith cannot be separated from souls for the purpose of enlarging corporate power. The attempt is an injustice to the Catholic people and an insult to Catholic theology, but it is even more unjust to the non-Catholic public, because it is their rights which will be reduced, if Chopko is successful.
Round about footnote # 40, it becomes clear that Chopko hates the Lemon decision almost as much as he hates the "wall of separation" metaphor. His attitude toward Lemon and indeed toward the very idea of neutrality is one of dismissal. How fortunate we are in western Massachusetts that Judges Ponsor, Agonstini, Duffly, and others treat Lemon with respect (see especially pg. 51 of the OLOH decision: "(“Despite scattered signals to the contrary, the
touchstone for Establishment Clause analysis remains the tripartite test set out in Lemon”). Given how Chopko feels about Lemon, it’s all too predictable that by the time he gets to Smith (at footnote 403) things have really gone to pot.
Chopko asserts that religion organizations need not be granted entitlements, but have them already by natural right. The confusion is rampant. He continually takes the idea of natural law, individual rights and dignity (which values, as far as I know, all civilized people agree on) and then tries to transplant them bodily into the Franken-Church he is laboring over in his church basement. This experiment is ungodly and will fail, because moral standards always belong to people, not institutions.
If the exercise of moral standards has not changed, and is not endangered, what is the motivation? What has changed? The more you study this paper, the clearer it becomes that what has changed is not religion or shared moral codes at all, but rather the temper of civil society. But, while the bishops and Chopko argue that this change is for the worse, many would disagree. Many (and I am among them) would say it has changed for the better. Civil law is imperfect (and always will be) but great strides have been made.
But, if religious actors must now maintain their good citizenship bona fides no less stringently than they exercise their religious beliefs, this suggests that there can be a legitimate difference of opinion about behavior, and that the arbiter in some cases may not be the church, but rather the civil authorities. This, I suspect, is why the issue matters to the bishops. It’s not so much that belief is at stake. That remains a private matter. The battleground is behavior.
Let’s look at a few more of Chopko’s rationalizations:
Chopko says that “the Court has recognized the need to preserve “the autonomy and freedom of religious bodies . . . .” (167) “[R]eligious organizations,” one justice wrote, “have an interest in autonomy in ordering their internal affairs, so that they may be free to: select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.” (168)
There are two points to make about the inclusion of this quote. First, it advances a view of church leadership that is quite different from that of the USCCB. By their repeated actions, we know that they believe that the selection of leaders within the Catholic church should never be complicated by including lay people, whether as deciders, or, God forbid, as leaders themselves. The second point is that though this quote supports the idea that churches can and should govern themselves, it falls far short of transposing that right of autonomy to the dealings of churches with civil society, which is the overriding theme of Chopko’s essay.
At pg. 415:
“The ministerial exception applies even if the church’s conduct is not based on, or motivated by, religious belief or doctrine. (203) Independent of its prohibition against “evaluating or interpreting religious doctrine,” the First Amendment forbids the government from “intrud[ing] into church governance.” (204) “This second concern alone is enough to bar the involvement of the civil courts” in deciding discrimination claims by ministers against their churches. (205) Thus, a church’s actual motivation for its ministerial employment decisions is irrelevant. (206)”
Astonishingly, Chopko has now broadened the “ministerial exception” to the point where nothing needs to be proven, not even that anything religiously motivated is attached to it. So, for those following at home, the “ministerial exception” no longer apply to ministers, nor even to belief. Apparently, it floats in the ether, untethered to any shred of cause and effect.
Is he kidding?
The most interesting thing of all is that the “ministerial exception”, after a hiatus of 40 years, has been taken up by the high court, and is being roundly debated.
See here. It will be interesting to see how much of an exception to neutral laws the high court considers it to be. It would seem that if it is to stand at all, it must stand to protect behavior that is genuinely motivated by religion. How could it be otherwise?
The section of Chopko’s paper where he attempts to re-write the Bollard decision is possibly the best at indicating the depths of depravity that the “church autonomy” doctrine encourages. Check it out:
[at footnote 207] “. … Bollard was wrongly decided……Bollard, a former seminarian, sued the Jesuits for sexual harassment and constructive discharge. The opinion… concluded that the ministerial exception did not apply because the religious order was not (a) “exercising its constitutionally protected prerogative to choose its ministers” or (b) “embracing the behavior at issue.” … Of course, as to the second reason … Harassment, a type of discrimination, is barred like any other discrimination claim by a minister. As to the first reason offered by the panel, it is hard to see how a damages suit by a former seminarian will not impact how the Jesuits choose their ministers or other internal processes, involving as it does inquiry into the very relationship between that order and one of its seminarians…”
Harassment is “a type of discrimination” and therefore falls under the ministerial exception and therefore deserves consideration and even protection? Have I missed something? Since when did sexual harassment become religiously motivated? The relationship between the former seminarian and the order is so important, so sacred, that even sexual harassment is explained away, and not allowed to interfere with how Jesuits choose their ministers? A question occurs to me:
WHAT ARE THESE PEOPLE SMOKING?
What is wrong with the drinking water at the USCCB water-cooler? Are they even functioning human beings over there? Have they no shame?
At page 424, the clergy malpractice section is ripe for complaint:
“3.…..We think the autonomy rules prohibit the courts from imposing on churches a structure, governance, or doctrine they do not accept or impose on themselves. The clearest violation of this rule would be a civil court deciding a hierarchical church is congregational and vice versa. (260) Giving a civil effect to the polity of a church by taking notice of its internal law and doctrine is also consistent with this rule.”
Each time Chopko mentions “the autonomy rules” we need to pause and reflect that that these are not proven. On the contrary they could be called “license” with as much justification. Chopko wants nothing less than to extend these so-called “rules” so that civil law can be disabled at will.
The last statement in Chopko’s paragraph is interesting because it all but justifies the use of force against actions that the church hierarchy disapproves of. Examples include but are not limited to: throwing reluctant parishioners out of closed churches; taking control of parish funds without authorization by the parish; selling church property out from under parishioners (
as recently happened in Framingham at St. Jeremiah’s), and in general, calling the cops when it suits the purposes of the hierarchy. In other words, brute extension of corporate control.
Let us suppose that a group of parishioners occupy a church to save it from demolition, and that the Bishop, having failed to present a moral argument which convinced the people to leave,
brings a civil suit against the parishioners, essentially throwing them out as trespassers. That would be his civil right, as head of a corporation. And, as Chopko says: “giving a civil effect to the polity of a church” is consistent with the so-called autonomy rules.
It is here that we see how the so-called autonomy rules, though they facilitate an appealing wish list, can backfire. The USCCB presents them as arguments for protecting “the church”, but in reality they can only protect the corporate structure of the organization, which does not necessarily speak for all Catholics and which certainly does not always uphold gospel values. We need not look too far to find examples. The so-called autonomy rules will always support the pointy end of the pyramid, because they will always follow corporate law.
Even though it’s within the Bishop’s power to call on Jack Egan and his cohorts at Egan, Flanagan and Cohen to throw people out of churches, both by Chopko’s reasoning (and by McDonnell’s trusteeship through corporate sole) he would be foolish to so. The first and best reason is that it would be morally wrong.
The second reason is that it would make a public mockery, once again, of the Catholic values previously touted by Chopko in this paper: “…How could religious faith continue to be exercised and passed along from generation to generation outside its communitarian context? A religious tradition is always learned and practiced in some community of faith and worship…”
At pg. 425:
6. …..“It is not only the conclusions that may be reached by [government] which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” (268) This has important implications because any proceeding against a church, including court-allowed discovery, may impinge upon the right of church autonomy. (269)
"Discovery" is not as terminal as presented here, because discovery is only looking at the documents. Whether the documents may be entered into court proceedings and made public is a different matter. See the
review of the issues in the 8.5 million dollar insurance trial, where discovery was allowed for just this reason, and over just these objections. Judge Agonstini (and Judge Duffly, confirming the motion judge) found that church autonomy was not implicated in the discovery of disputed church documents during the trial.
Chopko's solutions throughout this paper are as simple as they are self-serving: rewrite Moses (Colorado), rewrite Martinelli (Connecticut), rewrite Catholic Charities (Sacramento, CA) and rewrite Bollard (CA), so that they conform to the discretion, prudence and autonomy that the bishops believe are theirs by right. More examples of how their concept of “autonomy” extends far beyond the initial reaction:
At pg. 435, negligent hire:
Footnote 332 is especially chilling because, after you cut through the double-talk, it amounts to a defense of shuffling troubled priests around. But, if there is no duty to protect church members against abuse, as it insinuates, and no possibility of litigation when it is found out, what is left? How will the Roman Catholic church ever get the necessary protection? Chopko’s argument succeeds only if you believe that self-policing works — which it clearly does not.
Again, at pg. 440, This argument seeks to undercut the possibility of negligence within the church. We’re told that the legal concept of “negligence” simply does not exist within church walls, and cannot be applied. Yet, common sense tells us that negligence is not just a possibility. Negligence has happened, continues to happen, and will happen again; it cannot be wished away. No evidence to the contrary has emerged.
In the end, the paper fails. We still don’t know, on the evidence of this paper, whether church autonomy exists, even though 66 pages and over 400 footnotes gave their life for the cause. When Chopko is not referring back to his prior points (infra), rewriting case law, or misrepresenting corporate law as the Good News, he’s indulging in “poutrage” against strategically selected straw men.
Instead of hearing the various autonomy cases "talking to each other", as promised, the reader must come to the conclusion that this paper has, in the end, simply talked itself out.
Posts
