By now the decision of the United States Court of Appeals, 1st Circuit, to
re-affirm the designation of Our Lady of Hope church as a historic building in
Springfield is receding into history.
https://www.dropbox.com/s/3q0bceny6bp96tu/155419333-First-Circuit-Court-of-Appeals-Ruling.pdf
The decision came down on July 22, and although diocesan lawyers had threatened yet more court action, that seems unlikely. It's time for reflection.
https://www.dropbox.com/s/3q0bceny6bp96tu/155419333-First-Circuit-Court-of-Appeals-Ruling.pdf
The decision came down on July 22, and although diocesan lawyers had threatened yet more court action, that seems unlikely. It's time for reflection.
The three-year interval during which Bishop McDonnell and
other church officials tried to hold back the hands of time is strangely
reminiscent of another three-year legal delay: the 2005-2008 interval pending
the settlement of over 100 abuse claims against over 50 religious personnel
who, while in the employ of the Springfield Diocese, were alleged to have
perpetrated sexual abuse or other crimes, primarily against children. No matter
how beautiful or significant OLOH may be as an architectural gem, the gravity
of the current fight cannot be compared to the worth of a human soul.
Yet, the tactics of church lawyers in the OLOH case, led by
John Egan, were at times uncomfortably familiar. We take it as a given that
lawyers will do almost anything to win. And yet, just as church CEO's, like
Bishop McDonnell, should be held to a higher standard than ordinary CEO's, so,
too, should church lawyers such as John Egan be held to a higher standard than
just any lawyer. Unfortunately, Mr. Egan's stalling tactics, his blatant
disregard for the truth, and his inclination to press frivilous demands - in
other words, to game the system - indicate that he's failed to meet any reasonable
expectation of gospel values.
Lending some urgency to the need to understand the outcome
is the fact that battles loom in the Springfield Diocese between the titular
leaders of the church community and long-suffering parishioners. The most prominent
battle concerns the remaining parishioners of Mater Dolorosa Church of Holyoke,
who continue to fight for their rights, but other battles live on in a sort of
twilight: squelched, suppressed, yet not solved. There is also the not-so-small
matter of the Catholics who have left the local church, in good faith, because
their consciences would not allow them to stay. Many have left not because of
the doctrine, the liturgy, or the preaching, but because of the lawyering.
For these reasons we continue to shine a light on the
decision-making of the secular authorities, seeking clues and useful
distinctions. It's not simply a clergy vs. laity issue, for many laity support
the position of the church lawyers, and many clergy support the position of
protesting parishioners...though they have an annoying tendency to be damn
quiet about it.
If one wanted to pursue the reasoning of the counterparts of
the secular authorites (the canonical authories in Rome) a visit to the blog of
Peter Borre, an on-again, off-again advisor to several local churches, would be
in order. His opinions about the conflicts among church factions are always
interesting:
Now, what about the OLOH appeal decision? This decision is a
mixed bag: overall, the appeal justices upheld the District Court, which found
that the historic designation should stand. That's the most important news.
Still, the written decision combined good reasoning with several
dropping-the-ball rationalizations that favor the Roman Catholic Bishop of
Springfield (RCB) at the expense of the public welfare and the parishioners of
the diocese. It's unfortunate that even at the higher reaches of the judiciary,
justice remains elusive.
Thankfully, the case pressed by Egan and others was found so
unripe that it prevented the justices from reaching any conclusions about
constitutionality as urged by the RCB. The reason cited was that the RCB did
not supply enough facts about deconsecration of the church or plans for use of
the building which might have led to a denial by the Springfield Historic
Commission (SHC), which denial might have triggered constitutional issues. All
remained hypothetical, and while this situation seemed on paper to favor the
RCB, in the end the airy nature of the complaint was its undoing. We now take a
look at those complaints of the RCB.
On p. 3, "RCB claims that the ordinance gives the SHC
veto power over its religious decision-making, and in doing so violates its
First Amendment rights to free speech and free exercise of religion....We
conclude that only a limited claim is now ripe: namely, RCB's claim based on
the mere enactment of the ordinance. But those of RCB's claims which depend on
the potential consequences of compliance with the ordinance are not
ripe...because RCB has not yet devised its plans for the church nor submitted
any application to the SHC."
On p. 4, the justices say that "...The facts in this
case are undisputed..." Undisputed they were, but the strategy of going for summary judgment was arguably a
miscalculation on the part of City lawyers (concerning the rules of summary judgment under Federal Rule 56). Two which stand out: the RCB's
assertion that parishioners provided input during the Parish Planning
discussions which led to the closing of OLOH, and the RCB's claim that
"deconsecration" by clerics requires great thought and deliberation. Unfortunately, due to the structure of the filing, there was no "day in court" during which these so-called facts might have been examined.
Looking at the first, on p. 5 the justices note that
"...Part of the [Pastoral Planning] committee's duty was to seek and
incorporate the views of members of the Diocese outside the committee
itself..." True enough. However, whether or not the Pastoral Planning
Committee actually followed through and performed this duty is certainly open
to question.
Had these assertions about the Pastoral Planning Committee's
duty been challenged, and particularly the committee's
follow-through, the airing of testimony from groups of parishioners throughout
the diocese could have proved the exact opposite: namely, that parishioner
input was excluded from the process: that there was a systematic effort on the
part of diocesan officials to snuff participation out: and that these actions
led to a series of secret decisions made by a hand-picked cohort of lay people
chosen on the basis of their fidelity to the opinions of chancery officials.
It would have been easy for City lawyers to have found
parishioners to testify. People from St. Stan's in Adams, St. Therese's in
Pittsfield, Immaculate Conception in Indian Orchard, and Mater Dolorosa in
Holyoke, to name only four, come to mind. However, the possibility of court
testimony was foreclosed.
The religious upbringing of the presiding justices is
unknown, but there seems to have been unusual amounts of deference. Far from
discriminating against the Catholic religion, the amount of forbearance given
to Bishop McDonnell's claims was remarkable. The judges swallowed large
chunks of the bishop's story. For example, on p. 7 the justices state that
sound Catholic teaching requires that ..."Symbols that cannot be removed
[from a church building] may also be destroyed -- along with the building
itself, if necessary -- if RCB determines that destruction is necessary to
avoid desecration." What?
How likely is it, one may ask, that the threat of desecration of church property could be a real and motivating factor for the bishop in this year of our Lord 2013 A. D.? Are we in the middle of the middle Ages, when bloody Crusades began over such matters? Are we in ancient Rome, during the persecutions of the emperor Diocletian? The argument that today's bishops go around destroying former church buildings motivated by the need to preserve sacred ground from the deprecations of Satan is simply absurd.
The devils and demons which are most feared by bishops in
their role as CEO's of million-dollar corporations are of an entirely different
order - real estate taxes, zoning rules, and HUD guidelines, to name three. Yet none of this reality crept into the rulings of the judges, who assumed that the bishop of Springfield is
telling the truth when he argues that he must destroy a building in order to
save it, or, as the judges put it, "to avoid desecration." That the
bishop is willing to use this argument is evidence of the depravity of the
argument, not the rightness of it. How shameful.
Strangely, while Representative Curran, the Springfield Historic
Commission, and the Massachusetts Historical Commission were forthright in
saying that they wished to save OLOH from destruction through the application
of historic preservation laws, the countervailing position of the bishop,
namely, that the laws of historic preservation need not apply to the RCB, was
allowed to stand unanswered. The bishop's anti-preservation position did not even merit a comment in court papers.
Instead, the justices gave credence to the bishop's claim
that the issue was "deconsecration", profane vs. sacred vs. sordid
use, and so on, thus eliding the bishop's true position, which is that as property
owner he wanted to retain his ability to knock down, demolish, alter, sell,
rent, or retain his ostensible property. For the bishop to draw a cloak of
canonical immunity and obfuscation over a secular matter in order to get his
way is no better than the opposite, namely, to use secular law as a battering
ram to get his way with lay members of the church who happen to disagree with
his plans for parish property.
The most spectacular example in recent memory, of course, is
the long-drawn out lawsuit instigated by the bishop against the community of
Mater Dolorosa in Holyoke. The bishop's efforts have been ferocious. The
initiation of a secular lawsuit to enforce what he cannot obtain by consent of
the governed reveals the depth and desperation of his motivation.
The issues of saving the parish of OLOH and saving the
church building of OLOH are intertwined, but they are not the same. It's
significant that the bishop is against both: saving the parish and also saving
the building. He apparently considers both expendable. Again, this is the
attitude which he continues to display
toward the beleaguered parishioners of Mater Dolorosa.
One cause for celebration is that there were many counts in
the original decision against the Diocese which were either not contested or
left to stand. The justices wrote for example on p. 16: "The district
court also briefly discussed, and rejected, RCB's arguments under the federal
Establishment Clause, the Fourteenth Amendment Due Process Clause, the
Fourteenth Amendment Equal Protection Clause, and the Massachusetts Civil
Rights Act. See RCB, 760 F. Supp. 2d at 193-95. RCB does not press any of these
arguments on appeal, and we do not address them."
On p. 20 we learn that "Indeed, both the district court
and the City have emphasized a key missing fact: RCB did not put in the record
any specific plan for the sale and/or deconsecration of the Church. Nor does
the record indicate that RCB made any such proposal to the City (via the
Council or the SHC) before filing the instant lawsuit. Nothing has yet been presented
to the SHC. Instead, RCB filed this lawsuit the very next day after the
Ordinance went into effect. As such, the City has had no opportunity to
demonstrate whether or not it will accommodate some, all, or none of RCB's
requests for changes to the exterior of the Church.
Indeed, RCB has not settled upon any plan for future use of the property that would necessarily entail changes to the Church's exterior. Without knowing what RCB can or cannot do with the Church under the Ordinance, we cannot know to what extent, if any, RCB will suffer from a burden on its religious practice. This uncertainty likewise casts doubt on RCB's argument that any application to the SHC would be futile. The City has made it clear, both in the proceedings leading to passage of the Ordinance and throughout this lawsuit, that its purpose in passing the Ordinance was to prevent demolition of the Church. If RCB had proffered evidence that it in fact planned to demolish the Church, in accordance with the requirements of its deconsecration procedures, then RCB may have been able to make the futility argument...
But the City has not represented that it would deny all applications to alter the exterior of the Church in any way, and RCB has not offered evidence to suggest that the City would deny all such applications. Given this uncertainty, we cannot conclude that RCB's claims premised on its feared inability to deconsecrate the Church according to its religious principles, as a result of future SHC decisions, are now fit for adjudication. Because we conclude that RCB's claims based on its possible prospective inability to deconsecrate the Church fail the prudential component of the ripeness test, we need not address whether those claims would satisfy the constitutional component."
Indeed, RCB has not settled upon any plan for future use of the property that would necessarily entail changes to the Church's exterior. Without knowing what RCB can or cannot do with the Church under the Ordinance, we cannot know to what extent, if any, RCB will suffer from a burden on its religious practice. This uncertainty likewise casts doubt on RCB's argument that any application to the SHC would be futile. The City has made it clear, both in the proceedings leading to passage of the Ordinance and throughout this lawsuit, that its purpose in passing the Ordinance was to prevent demolition of the Church. If RCB had proffered evidence that it in fact planned to demolish the Church, in accordance with the requirements of its deconsecration procedures, then RCB may have been able to make the futility argument...
But the City has not represented that it would deny all applications to alter the exterior of the Church in any way, and RCB has not offered evidence to suggest that the City would deny all such applications. Given this uncertainty, we cannot conclude that RCB's claims premised on its feared inability to deconsecrate the Church according to its religious principles, as a result of future SHC decisions, are now fit for adjudication. Because we conclude that RCB's claims based on its possible prospective inability to deconsecrate the Church fail the prudential component of the ripeness test, we need not address whether those claims would satisfy the constitutional component."
On p. 13, the Diocesan Playbook comes onto the scene. Most
Roman Catholic bishops, including Bishop McDonnell, decide by not deciding (in
other words, forestalling action until circumstances force a resolution for
which they cannot be held responsible). In this case, going down that road was
a mistake. The justices ruled that the failure of the RCB to present plans for
anything - deconsecration, sale or lease, alterations, even demolition -
negated any claims they might otherwise have been entitled to in court under
RLUIPA (the federal statute).
The justices state that "There is no doubt that the
City intends to enforce the Ordinance against RCB and that RCB must submit
several categories of its decision-making, otherwise governed by religious
doctrine, to the SHC."
The first part is correct but the last part sounds erroneous. Let's think about this, folks. Is a sq. ft. price for development of
office space in the City of Springfield a proper subject for religious
decision-making? How about the going rate for a tear-down and trashing of a
multi-thousands of sq. ft. masonry foundation and building? Or a debate about
the relative merits of a stick-built or pre-fab shell for a new building? No? Well,
what about the lease arrangements for a 10-year occupancy on the site of a CVS,
Rite-Aid, or Brooks pharmacy? Not religious decision-making? Of course not.
Yet these business decisions by a corporation (which is what
the RCB is, albeit a non-profit and religious one) are exactly the type of
issues discussed by accountants and financial planners, and yes, bishops,
within chancery walls. They are clearly not religious, nor do they deserve
religious immunity.
The justices claim that "deconsecration constitutes
religious exercise under the statute." (pg. 26). However, no one in the
course of this three-year lawsuit was able to define
"deconsecration." Nor could they. Search though you may through
secular and canon law, you will not find so-called deconsecration defined,
except in negative terms. There is simply no case law or precedent to refer to,
which should give some indication as to how nebulous a concept
"deconsecration" actually is. Unfortunately this Will-o'-the-Wisp was
not pursued by City lawyers. If it had been, it might have been found out as yet
more grandstanding by Mr. Egan and his associates.
The worst thing about the discussion of federal law
beginning on pg. 28 is not any part of it or even the (very tentative)
conclusions. The worst thing is that the meek acceptance by the appeals court
of the arguments put forth by church lawyers can have no other effect but to
encourage them to indulge in yet more frivolous behavior. The court was eager to take these so-called facts and proceed to spin theories while
entertaining the "legal" question (as opposed to facts on the
ground). This will continue to give license to the church lawyers'
mischaracterizations. These are clearly disputes about property and money! You
know the case is in trouble when the justices resort to the latest edition of
Merriam-Webster's dictionary to in order to define and bolster their argument.
The justices go around in circles over the definition of
what a substantial burden might or might not be, before back-pedaling out the courtroom door
entirely without offering a resolution. Laying a substantial burden on the
religious exercise of the diocese is clearly prohibited, but the plain fact of
the matter is that the diocese in the person of the bishop has never, in the
course of this case, been put in an either/or situation vis-a-vis matters of
conscience. It never even comes close to that. The true stakes are always more
worldly, namely, power; buying and selling; and, most of all, the sq. ft. value
of buildable lots in the City of Springfield.
Assuming, arguendo, that the religious exercise rights of
the RCB were being trampled, the City
could still claim a right by virtue of a principled and necessary stand for the
values of historic preservation, a compelling government interest, because the
Ordinance would have been the least restrictive manner to have enforced that interest.
Absent the ordinance, it's very possible and even probable that OLOH church
would not have survived as long as the three years of the lawsuit. It would long since have been smashed and lying in heaps of rubble.
The threat of demolition is real — much more real, I would
argue, than the supposed curtailment of any religious exercise by the RCB,
which includes this writer and the former parishioners of OLOH as well as the
bishop. I certainly haven't felt a chill in the air over my religious rights.
Has anyone, other than the bishop's lawyers? These are the types of questions
that have not been conceived and raised on Elliot Street, let alone given
respect and consideration in the parish halls of the diocese.
Throughout the case, the 800-pound gorilla in the room was
historic preservation. It is remarkable how the justices avoided the issue. Yet the preservation of the church is the
whole point of the Ordinance. It would have been interesting to have been a fly
on the wall in the judge's chambers (equipped with a tape recorder) for then we
could have learned how historic preservation figured into the crafting of
the decision. Without the tape recording, we will never know.
Other highlights: RCB argued that the historical designation
ordinance violated the equal rights provision of RLUIPA. However, the court
observed that "RCB does not point to any particular secular institution or
class of institutions that was treated differently than was RCB. Rather, RCB
compares itself to every secular institution in the City of Springfield, none
of which are included in a single-parcel historic district. Under any
reasonable interpretation of the equal terms provision, this argument
fails."
What about the complaint that the City was restricting the
church's freedom of speech? This became moot because neither the City nor the diocese raised the issue in sufficient seriousness to engage the court. For the diocese, it was only useful as a putative prong of a so-called hybrid case
that might trigger strict scrutiny. For the City, it was clearly not an issue
since the diocese had not filed (and apparently had no intention of filing) a
proposal for how to change the exterior of the church. Without the proposal,
there could be no denial and therefore no reason to bring up the denial of free speech by removing religious symbols such as statues, friezes, crosses,
etc. Yes, that's right, religious symbols have been found by other courts to represent
"speech" and therefore their use or misuse are covered by the First
Amendment.
On pg. 45, the justices announce that they've decided to subject the
RCB's claims to strict scrutiny. Thus, be careful what you wish for, RCB! It
turns out that under strict scrutiny, the court found in favor of the City:
"RCB has not shown that the mere existence of the Ordinance constitutes a
substantial burden on its First Amendment right to the free exercise of religion."
The court also found that "there is no
evidence that suppression of Catholic religious practices was the object of the
Ordinance." How shameful that it took three years and untold thousands of
hours and dollars to make this common-sense assertion binding upon diocesan
lawyers.
Was this trip necessary?
Was this trip necessary?
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