Notes on: City of Springfield v. Roman Catholic Bishop of Springfield (concerning Our Lady of Hope Church)

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.

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."

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?