“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.
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In this installment we start looking at Mark Chopko's article.
“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.
________
In this installment we start looking at Mark Chopko's article.
First of all, you have to love a journal article with footnotes (note 75, for one) that cite the New Testament. At least this reference is easily found! As far as peer review goes...we may have to grandfather this one in.
The first sentence of Mark Chopko’s 66 page essay written in 2005 is problematic: "Churches have a right to be free of government control."
Not so, according to Marci Hamilton. On pg. 239 of her 2007 essay, which we will soon consider, she states just as flatly "...there is no constitutional right to autonomy..."
So, which of these is right? Recall, back in 1981, Laycock wrote, just as plainly as Chopko: ". . . churches have a constitutionally protected interest in managing their own institutions free of government interference.” Essentially, Chopko, on behalf of the bishops, is piggy-backing on the claims of Laycock and others who seek to broaden the constitutional claims for church’s rights.
Perhaps anticipating sensible objections to the theme of extending rights to organizations (churches) that were intended for individuals (free exercise), Laycock also wrote in the 1981 paper that:
“…The right to church autonomy under the free exercise clause is not dependent on claims of conscientious objection. Individuals exercise their religion in ways not required by conscience, and they do so through organizations. Any interference with the autonomy of these organizations jeopardizes free exercise rights of their members, including the free development of religious doctrine….”
This is a lot to digest.
He sticks up for the right of the individual church member by suggesting that this authority can be transferred to the group. Meanwhile, there are many members of society who have nothing whatsoever to do with the group. Though these other folks are not implicated at this point in Laycock’s argument, they, too, are individuals with rights. We can already sense that the story that Laycock is spinning will not have a happy ending.
Even though the right of free exercise is at the core of his argument, Laycock looks past the individual’s exercise of religion and instead elevates the organization’s exercise of its religion to the prime spot. It can be no accident that many of the legal entitlements that Laycock disfavors in this paper (sanctions designed to enforce the minimum standards of labor and social justice, for example) are often aimed at organizations in their role as employers, landlords, or educational institutions.
I’m not even sure if it’s possible to transfer rights from an individual to a group, as Laycock proposes. When a group is represented by an individual (for example, when a CEO represents a corporation, or, when a Bishop represents parishioners in many of the same lawsuits under consideration here), the opposite is true. We accept this legal fiction of the one substituting for the many for a good reason — because it simplifies things. Whether the many can substitute for the one and thereby gain rights, and in particular new rights that never applied to the individual — that’s different.
I also question where he gets the notion that “…individuals exercise their religion in ways not required by conscience…” They do? How?
This sounds like a non sequitur. Do religious beliefs even exist, if they are not grounded in a conscience? Laycock’s clause not only takes away an essential component (a person’s moral outlook), it also places it where it does not belong and cannot take root (the group). Conscience cannot be shared.
Laycock's conclusion is that the group is allowed to exercise religion in ways not required by conscience. That's the plain meaning of what he wrote. By this logic, “church autonomy” is not only a creative extension of rights, it is also amoral.
Since this so-called right to autonomy is unmoored from human agency and the checks and balances of discussion, collaboration and debate, is it any surprise that it tilts toward the arbitrary and unexplained use of power? That it is capricious? That it can and does produce evil?
Arguments like Laycock’s are the underpinnings of the legal strategies that Chopko and other church lawyers have been advancing for the last 30 years or so. A foundation like that goes a lot way toward explaining why the record of the Catholic church toward abuse victims has been so shameful.
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