Boston Globe: Cardinal Sean O’Malley’s backing sought on bills

http://www.bostonglobe.com/metro/2013/12/09/advocates-urge-malley-back-statute-limitations-reform-for-abuse-victims/DrPIpXrGQwu9VnNoDTfkUM/story.html
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By Travis Andersen
Globe Staff  
December 09, 2013


Child welfare advocates are calling on the head of the Roman Catholic Archdiocese of Boston to back legislation that would extend the statute of limitations in Massachusetts on cases brought by victims of childhood sexual abuse.
The open letter to Cardinal Sean P. O’Malley came days after he announced a major effort by Pope Francis to explore ways the church can protect children from abuse and to care for victims. The new Vatican commission marks the Catholic Church’s first comprehensive effort to address a scandal that exploded in 2002 in Boston and become a worldwide crisis.
The bills in Massachusetts are the latest efforts by advocates to get the state Legislature to allow more time for victims of childhood sexual abuse to pursue their alleged abusers in state court. One proposal would allow abuse victims to file a lawsuit in civil court up to the age of 55. Current law generally caps the filing age at 21. A separate bill would open a one-year window for those older than 55 to file claims. In criminal cases, accusers have until age 43 to file charges. The civil and criminal rules apply to all abuse cases and are not limited to church-related incidents.
A spokesman Sunday declined to disclose the archdiocese’s position on the proposals. But when the Legislature considered a more sweeping measure last year, the archdiocese’s policy arm, the Massachusetts Catholic Conference, warned that it could open church organizations to additional liability in decades-old cases and harm their charitable efforts.
On Sunday, a group of advocates led by Massachusetts Citizens for Children sent an open letter to O’Malley, arguing that the current legislation aligns with church principles, as stated by the Catholic Conference.
“Protecting the ‘dignity of the human person and the sanctity of [all] human lives,’ the expressed goals of the Massachusetts Catholic Conference, apply to the quest for justice that victims of sexual abuse and advocates for children have been on for so long,” the advocates wrote.
By supporting the legislation, the advocates added, “you can help us help them and prevent more children from being abused.”
Lawmakers have until the end of the legislative session in July 2014 to send a bill to the governor’s desk for final passage.
Terrence Donilon, a spokesman for the Boston archdiocese, said in a statement that the church continues to seek forgiveness from anyone harmed by “these reprehensible acts” and remains vigilant in its efforts to protect children. “We indemnify and provide services for any person impacted by the sexual abuse of minors in the Church, regardless of when the abuse took place,” Donilon said. “We have been humbled to witness the strength and courage of many survivors through their inspirational accounts of faith and healing.”
During consideration of similar legislation last year, opponents said they feared it could expose dioceses and affiliated groups to additional liability, and potentially undermine the church’s already shaky finances. That previous bill initially called for eliminating the statute of limitations entirely for child sex abuse cases, and for eliminating a $20,000 cap on civil damages for nonprofits.
James F. Driscoll, executive director of the Catholic Conference, said in May 2012 that the measure would “have an immediate and harmful impact on the ability of all nonprofits, not just the Catholic Church, to serve thousands of people who rely on these organizations.’’
Driscoll did not respond to a request for comment Sunday.
The archdiocese has waived the statute of limitations and the charitable immunity cap in many cases it has settled out of court. The church has spent the last 10 years trying to address a massive sexual abuse scandal that in Boston alone has involved more than 1,100 victims and cost the archdiocese about $150 million in damages from civil lawsuits.
Jetta Bernier, executive director of Citizens For Children, known also as MassKids, said in an interview that opponents’ concerns about the financial harm to the church’s charitable programs are misplaced. She said the majority of victims of childhood sexual abuse were not targeted by priests but rather other authority figures including teachers, coaches, and relatives.
And, Bernier said, the church “should base its actions on moral reasonings, not on economic ones.”

Lisa Wangsness, Stephanie Ebbert, and Milton J. Valencia of the Globe Staff contributed to this report.

© 2013 Boston Globe Media Partners, LLC

Massachusetts SOL Legislation

Letter: Church must move to right side on sex crimes billwww.berkshireeagle.comTo the Editor of THE EAGLE: Once again, bills have been introduced in the Massachusetts Legislature to reform our outmoded Statutes of

Letter: Church must move to right side on sex crimes bill

Letter to the Editor

POSTED:   11/27/2013 12:09:53 AM EST

UPDATED:   11/27/2013 12:09:54 AM EST

To the Editor of THE EAGLE:

Once again, bills have been introduced in the Massachusetts Legislature to reform our outmoded Statutes of Limitations (SOL) laws "for certain sexual crimes against children." The first were in 2004. Crimes against our youngest and most vulnerable population go unpunished for many reasons: most are unreported; when they are reported, most claims are ignored; and finally, it takes many years for victims to realize what has happened to them, find their footing, and seek justice in a court of law.

It is during this time, a critical "window" of realization, that claims often lapse and become time-barred. Justice demands a counter-balancing "window" during which worthy claimants could come forward irrespective of the elapsed time, and press a claim. Indeed, H.1455 and S.633 are called "window legislation" for this reason. Victim’s claims will not ultimately succeed if they are not underpinned by compelling evidence; yet, without change to the SOL laws, their claims, however just, have no chance at all.

Every state that has proposed changes to SOL rules for child sexual abuse has met opposition from a powerful political force: the Catholic church. In 2008 the late Ed Saunders, chief lobbyist for the church, submitted written testimony against changes to SOL. There were three objections: The moral argument was that changes would unfairly impose new obligations on institutions and new liability on alleged pedophiles; the corporate argument maintained that it was irresponsible to punish the institution for the failings of individuals over which the institution had no control; and the economic argument was that if the church became insolvent through damage awards resulting from increased liability, the costs of the social programs that had been provided to society would then be thrust upon taxpayers.

The church’s opposition to SOL changes has evolved. In an address to over 60 legislators on Oct. 17, Cardinal Sean Patrick O’Malley, the archbisop of Boston, put the economic argument front and center and has said nothing publicly about the relative fairness or corporate aspects of the bills. It’s possible that the incongruity of endorsing more protection for pedophiles than for children has registered on the cardinal. It’s also possible that the employment review and employment retention policies of the church he governs have been found lacking. Or, perhaps the fact that most child sex crimes are perpetrated by family members, not members of the clergy or teachers, has played a part.

Just as banks trade in coin, churches trade in trust. By all accounts, the Catholic church in the commonwealth has lost an enormous amount of trust over the last 10 years or so. Has the cardinal changed his approach because the church can no longer afford to be on the wrong side of this issue? If so, letters to him from faithful parishioners might tip the balance, make his conversion complete, and put the Catholic Church where it belongs: on the right side of this issue.

ROBERT M. KELLY

Lee

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.

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:

http://peterborre.com

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?

Same Playbook, Different State

As the Massachusetts Legislature wrestles with finishing up the SOL bill to curb sex abuse (over the objections of Bishop Timothy McDonnell and the rest of the Massachusetts bishops), it's interesting to see that the Springfield Diocesan playbook engineered by the likes of John Egan Esq. and others is being put to use in California. This is a familiar and sad scenario.

The USCCB and related Catholic networks such as the Knights of Columbus and diocesan lawyers nationwide have become a breeding ground for a sort of stab-'em-in-the-back lobbying, which goes unseen by parishioners on a day to day basis. It is only in crisis mode (when reform legislation seems likely to win) when the bishops go into high gear and publish directives from the pulpit and chancery literally telling Catholic citizens how to vote:

THE CALIFORNIA BISHOPS FIGHT ACCESS TO JUSTICE FOR CHILD SEX ABUSE VICTIMS

CALIFORNIA
JUSTIA VERDICT
by Marci A. Hamilton

At the end of July, Los Angeles Roman Catholic Archbishop Jose Gomez sent the following letter to the editor of California Catholic, Bob McPhail, asking him to publish Gomez’s letter encouraging parishioners to contact their state elected representatives urging them to vote against statute-of-limitations (SOL) reform for child-sex- abuse victims, by voting against Bill SB131.  The primary target of the Catholic bishops, and bishops nationwide, is this statute-of-limitations window which would open a one-year period during which those victims of clergy child sex abuse whose statutes of limitations had expired (which is the vast majority) could still file lawsuits against their abusers and those who covered up the abuse.

Here is an excerpt of what Gomez said:

Friends, my brother bishops and I in the California Catholic Conference are asking all Catholics to contact their Assembly members and Senators and urge them to vote “No” on Senate Bill 131.
SB-131 fails to protect all victims of childhood sexual abuse, discriminates against Catholic schools and other private employers, and puts the Church’s social services and educational mission at risk.

This is the same playbook that was first conjured up by now-Philadelphia Archbishop Charles Chaput when he was the Archbishop of Denver, Colorado.  The main idea is that, once SOL reform is proposed in the legislature, the bishops then mobilize their parishioners against it, with messages that misrepresent the actual impact of such legislation, and then play a false anti-Catholic card to really get their parishioners out of the pews and onto their computers and phones.  The trouble is that neither claim is true, nor is either truly in the spirit of Catholic teachings.

Who Is Listening to Catholic Bishops on the Issue of Child Sex Abuse, and What Religious Values Fuel Their Opposition to Victims’ Access to Justice?

The natural response to such a push is to ask who now, in 2013, is looking to the Catholic bishops for guidance on the protection of children?  When it comes to child sex abuse, they have proven themselves deceptive and dangerous.

Why are elected representatives of the people giving them any traction on this particular issue?  There are plenty of others and this is just one of many they have put on their agendas.  Currently, they are chattering up a storm trying to keep gay couples away from the altar, keep contraception away from working women, and to stop abortion and the death penalty.  While many do not agree with them on these issues, at least, each of those positions has a home in their theology.

For the Catholic Church, the sexual abuse of children, and their continued endangerment, however, are not acts sanctioned by theology.  And, while the bishops have observed in the past a theologically-based “rule against scandal,” which led them to shield abusers to protect the reputation of the Church, they now say that they are engaging in “zero-tolerance” of abuse, and “cooperating” with authorities.  They are also committed, we are told, to transparency.

So, what religious values are served by their opposition to victims of childhood sexual abuse?  I am told that Catholic theology does embrace the pursuit of justice.  While the Church litigators fighting the victims of the Catholic hierarchy and priests in court frequently intone Canon Law to avoid discovery and liability, the Catechism of the Catholic Church (CCC), which John Paul II issued in 1992, is also part of their theological system.  Father James Connell, one of the brave founding members of the Catholic Whistleblowers, recently brought the definition of “justice” in Section 1807 of the CCC to my attention:

Justice is the moral virtue that consists in the constant and firm will to give their due to God and neighbor.  Justice toward God is called the ‘virtue of religion’. Justice toward men disposes one to respect the rights of each and to establish in human relationships the harmony that promotes equity with regard to persons and to the  common good.

This refreshing reminder about justice, one’s neighbor, respect for rights, and the common good provides a sharp contrast to the campaign to keep victims out of the justice system.  Where are these values in the public relations-fueled campaign against victims’ access to justice?  Nowhere.  Instead, the plea to parishioners tells them that SOL reform is about money, or more specifically, about putting services and schools at risk.

The Factual Shortcomings in the California Bishops’ Plea to Parishioners to Fight Victims’ Access to Justice

A cardinal problem with the Catholic bishops’ claims in this vein, however, is that, in fact, SOL reform has not led to shutting down schools or services.  Catholic schools have been shuttered because of demographics, not victims.  To triangulate the relationship between victims and parishioners, so that the victims are purportedly the enemies of the parishioners, is indefensible and about as far from the spirit and letter of CCC Section 1807 as you can get.

It is interesting to note that the California bishops are not fighting SB131 with the argument they have tried elsewhere: they have irresponsibly alleged that SOL reform leads to diocesan bankruptcies.  They have had to pull back on that whopper, because only one state has had a diocese file bankruptcy following SOL window legislation, which actually went forward—Delaware.  Under the 2003 window in California, only one diocese, San Diego, filed for bankruptcy, and it was ushered out of the bankruptcy court because of its copious holdings and wealth.  The other diocesan bankruptcies, in Spokane, Portland, Davenport, Tucson, and Milwaukee have had nothing to do with SOL reform.

Moreover, the California settlements that were paid to those victims who could come forward in 2003 were paid out of insurance proceeds and the sale of property that was mostly unrelated to religious uses.  To tell parishioners that they must oppose SB131 in order to protect their programs and schools is the height of misleading propaganda.

What religious values sanction the bishops’ fabrication of arguments against victims’ access to justice?  None I could find.

The bishops are upset in part, because there was a statute-of-limitations window that was open in 2003 in California, which assisted over 800 victims of the church hierarchy.  I suppose they figure that having meted out partial justice to a fraction of their victims, it should all just go away.  But many victims of the hierarchy, other institutions, and those in the largest number, victims of incest, did not know that the window was open, or understand what it meant.  This new window, and the accompanying extension of civil SOLs, is intended to reach those victims whose needs were left unmet by the prior window.

Let us also look to history to learn what the bishops fear the most from such lawsuits.  When settlements were reached following the 2003 California SOL window, they were paid expeditiously.  But the bishops then litigated, hammer and tongs, for ten years, in order to keep the files that they promised to release as part of the settlements, shuttered in darkness.  Only in 2013 were those files finally released, and they are embarrassing to the bishops, because of the depravity of their actions in letting criminals have easy access to children, and because of their instinct to protect themselves, rather than the children of their own believers.  Cardinal Mahoney lost public credibility and his position of authority because of the files’ release, and every bishop in the United States fears similar treatment when the files on which they are perched are eventually released.

If Gomez were being sincere with his parishioners, he would have written that he needs them to contact their representatives in order to protect his and his brethren’s already-tarnished reputations from going all the way down the tubes.  It’s not the services, or the schools, or the money that is motivating this frantic and expensive fight to keep clergy child abuse victims out of court.  What they fear is the ugly truth’s finding its way outside their mansions, cathedrals, and file drawers.

It Is Not Anti-Catholic to Provide Victims of Incest and Every Private Institution Access to Justice

The anti-Catholic charge in Gomez’s letter is pure “malarkey” to borrow a phrase from Cardinal Timothy Dolan, because SB131 is aimed at all private institutions and entities.  How is it that an institution that presumably has contact with families everyday that are struggling with incest can lobby against giving those victims access to justice, just to protect their own hides?

And where is the Catholic value that leads the bishops to fight to keep victims of incest out of court?  Which fathers, grandfathers, mothers, aunts, and cousins should be protected from legal accountability under Catholic theology?

True, SB131 does not cover public institutions.  As I argue in Justice Denied: What America Must Do to Protect Its Children, public institutions need justice for sex abuse.

I wholeheartedly urge the California legislature to take up that issue as well, and to consider a separate bill involving state and local institutions.  These institutions are always treated differently than private institutions, and issues like sovereign immunity, which are irrelevant to the private sphere, need to be considered when such institutions are at issue.  Let’s create justice for all victims of child sex abuse.  But there is no necessity that all entities are included in any one bill.  SB131 includes some of those that absolutely need to be addressed: families especially.

The claim by Gomez that SB131 is prejudiced against the Catholic Church, because it does not address public institutions, also needs to be taken with a large grain of salt (one that is about the size of California), because it is not as though the bishops want justice for victims of public institutions.  Instead, Gomez only floats this propaganda in order to kill the bill, not to make it more inclusive.  His fear is the potential access to the files of the victims on the private side, not any concern for the victims on the public side.

SB131 Is Constitutional

The other argument the bishops typically try to float against victims’ access to justice is the weak argument that windows are unconstitutional.  Gomez did not mention it in his short missive to parishioners, but his lobbyists are pushing it in the halls of the legislature in Sacramento.  Surprisingly, Professor Stephen Bainbridge posted a blog with a weak constitutional argument against it.  He does not take into account any of the actual cases or arguments that are relevant, and appears not to fully grasp all of the work that has already been done on the issue.

My explanation of why it is obviously constitutional is here.

If I were Professor Bainbridge, I would have declined the “opportunity” to defend the indefensible.

The Lobbying Picture in California

The bishops have been exerting the only truly active and well-financed lobbying pressure against sex-abuse victims’ access to justice in California, and any legislator who kowtows to their pressure on an issue over which they deserve absolutely no deference is no better than they are.  There are rumors that USA Swimming is lobbying against the bill as well, with the same lame argument that it’s “unfair,” but their involvement is less obvious, and harder to pin down.  Olympic athletes across the country should be scared if this is where the USA athletic leagues are headed—against access to justice for athletes.  USA Swimming should be ashamed of itself, and, again, any legislator deferring to an institution that has a history of child sex abuse on the protection of children and victims’ access to justice is no better than the institution pressuring them.

The choice is plain: protect children, or protect predators and the institutions that gave them access to children.  The victims of child sex abuse who are suffering right now need state legislators to do the right thing, for the right reasons, and to send packing the bishops who have lost their way on the issue of justice.

The pending California SOL reform bill, SB131, and the SOL window within it, is about access to justice for child-sex-abuse victims, and offers the only means to justice for thousands of survivors of sexual abuse that California law has currently barred from the system.  Every parishioner needs to understand what is really at stake: justice for those who allowed children to be terribly abused.

- See more at: http://verdict.justia.com/2013/08/08/the-california-catholic-bishops-fight-access-to-justice-for-child-sex-abuse-victims#sthash.JrlWON1d.dpuf

Our Lady of Hope Church historical district in Springfield upheld by US Court of Appeals

We will have more to say about this decision shortly. 

the decision can be found by following the link below:

https://www.dropbox.com/s/3q0bceny6bp96tu/155419333-First-Circuit-Court-of-Appeals-Ruling.pdf

Peter Goonan of the Republican newspaper in Springfield reported these key points:

The U.S. First Circuit Court of Appeals has upheld the city’s creation of a historic district more than three years ago that was aimed at protecting the Our Lady of Hope Church from demolition or exterior harm. 

The ruling stated that the diocese’s challenge of the district was premature, in part because there has been no proposal for reuse of the church or exterior changes, and no proof of substantial harm by its designation as a historic district. 

“It’s definitely good news,” Springfield Historical Commission Chairman Ralph Slate said Monday. “I am happy the court affirmed the right of the city to include religious properties in historic districts.” 

City Solicitor Edward M. Pikula said the ruling allows the city “to protect an important historical, cultural and architectural jewel.” 

The Historical Commission and many residents and parishioners had urged the council to designate the church as a historic district in 2009, as the church was faced with closure. The proponents said the church merited protection given its unique Italian Renaissance architecture in that neighborhood, and its status as a historic symbol in the Hungry Hill area of Springfield since built in 1925. 


U.S. District Court Judge Michael A. Ponsor upheld the single-property historic district in a January 2011 ruling, which was followed by the appeal and ruling in the U.S. Court of Appeals. 

Slate said that churches are among the most architecturally, historically significant buildings in the city. 

The Court of Appeals stated in part there is no evidence “that suppression of Catholic religious practices was the object of the ordinance.” In addition, without knowing what the Bishop can or cannot do to the building, absent any application, “we cannot know to what extent, if any (the Bishop) will suffer from a burden on its religious practice.”

City of Springfield Opposition to Bishop McDonnell's Lawsuit

Below is a summary of the City's answer to the allegations of Bishop McDonnell.

As part of our ongoing coverage of the federal case that John Egan is making out of Bishop McDonnell's reluctance to endorse the historic preservation of Our Lady Of Hope Church (he apparently prefers that it be bulldozed or made it into a concrete planter), we present a summary of the City's opposition to McDonnell's complaint.

The responses of the City of Springfield are taken from court paper # 25, which is archived on the Western Mass Catholics web site. The formal name of the paper is “City Opposition” and it consists of 3 parts, 25.1, 25.2 and 25.3. The partition of the paper was made due to pdf. limitations on the PACER web site of 20 pages per pdf.

My summary gives City responses to the complaint word for word.  However, there are many gaps (indicated by ellipses: . . . ) due to length of legal briefs, redundancy of arguments, and concerns for the mental health of transcriber.

Footnotes are not given but are indicated as they occur in the text. Footnotes often include salient points of the case law and not just citations. They can be easily found by referring to the three parts of Paper 25.  Footnotes 1-46 are found in 25.1, footnotes 47-101 are found in 25.2, and footnotes 102-131 are found in 25.3.
============================================

Paper 25 (City Response) 

Background 


Before discussing the substance of plaintiff’s [Bishop McDonnell's] assertions we turn first to two procedural issues:

1. Claims against named individuals are redundant and should be dismissed . . . suits against municipal agents in their official capacities are actually suits against the municipality.[8] . . .

2. The City is not a person under the Massachusetts Civil Rights Act (MCRA). Massachusetts courts have indicated that a municipality is not a “person” within the terms of the MCRA and, as such, cannot be sued under the statute.[9] . . . that claim must be dismissed in its entirely and Defendants are entitled to summary judgment on such claims . . .
____

Plaintiff’s suit challenges the facial validity of the enactment of Springfield’s Our Lady of Hope Historic District Ordinance on constitutional and statutory grounds…...Springfield City Ordinances properties within a historic district are given architectural protection by the Springfield Historical Commission…there is an application process by which the Commission may issue one of three types of certificates to allow changes within historic district: 1. Appropriateness . . . 2. Hardship . . . , and 3. Non-applicability . . .

Instead of filing an application for one of the aforementioned certificates . . . the plaintiff has chosen to challenge the constitutionality of the OLOH Ordinance under the State and Federal constitutions, and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C….(RLUIPA)….

…in 2001, the City of Springfield commissioned a historic survey of the Liberty Heights neighborhood. It was conducted by Bonnie Parson, preservation planner for the Pioneer Valley Planning Commission…Our Lady Of Hope church was included in that survey…

As noted in the survey of Ms. Parsons, the building meets the criteria for eligibility for the National Register of Historic Places, the federal listing of places important to the nation, state, or locality, as the first parish church for Irish immigrants of the Hungry Hill section of Springfield when population spread far enough north of the city to make Sacred Heart too far and too crowded. Established in 1906, the parish has continuously served as the religious, education and social, and civic center for Hungry Hill’s Catholic residents, most of whom have been among successive waves of immigrants to the city…

...the OLOH church is an imposing Italian Renaissance style structure at the corner of Carew Street, a major east/west thoroughfare, and Armory Street, a north/south connector. Not only is the building seen in the immediate neighborhood, but its 145-foot tower can be seen for a distance, such as from the North End bridge as one enters the City from West Springfield...

…OLOH church was designed by Springfield architect John Donohue, who was active throughout central and western Massachusetts designing many Roman Catholic churches, schools, parish houses, rectories and social centers…

Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state) [click to read full complaint]

A basic principle of constitutional law is that the First Amendment “free exercise clause embraces two separate concepts-freedom to believe and freedom to act. The first is absolute but, …the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.”[10] Laws which regulate conduct rather than speech generally fall outside the First Amendment and into an area over which government enjoys full regulatory power. …..although the application of the OLOH Historic district Ordinance many have some minimal impact upon “the unfettered autonomy” plaintiff “would otherwise enjoy,” plaintiff’s “generalized and diffuse concern for church autonomy, without  more, does not exempt” plaintiff “from the operation of secular laws.”[12]…..

…..The Catholic religion does not forbid compliance with the OLOH Historic District Ordinance. Plaintiff will not be subject to substantial pressure to modify his behavior and violate his religious beliefs in order to comply with the OLOH ordinance. The “routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring and close administrative contact between secular and religious bodies does not of itself violate the nonentanglement command.”[45] Substantial alteration or complete destruction of abandoned religious exterior architectural features, without compliance with the OLOH Ordinance, is not a constitutionally protected form of religious exercise.

...Plaintiff, as the “party claiming an unconstitutional burden on the free exercise of religion must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state requirement.” [84] Plaintiff has not presented facts to bring it within the hybrid rights exception where heightened judicial scrutiny may be appropriate...content-neutral legislation regarding publicly visible expressions such as the exterior architectural features of architecturally significant or historically important sites is permissible because it does not pose any danger of governmental censorship or political orthodoxy.

. . .Plaintiff presents a grab bag full of allegations designed to have the Court, for federal constitutional purposes, review the OLOH Ordinance under strict scrutiny.[47] ......the general proposition for addressing the constitutional protection for free exercise of religion established by the Supreme Court is "that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice."[49]...

...while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may restrict certain activities associated with the practice of religion pursuant to its general regulatory powers... The critical distinction is thus between a neutral, generally applicable law that happens to bear on religiously motivated action, and regulation that restricts certain conduct because it is religiously oriented."[51]...

...This critical distinction between beliefs and conduct is recognized in Massachusetts and used in analyzing the state constitutional scope of religious freedom....It is perfectly lawful to "enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city."[53]...

...The OLOH Ordinance was not created to infringe upon or restrict plaintiff's religious practices. Instead the OLOH Ordinance, like its enabling legislation, the Historic District Act, regulates neutral criteria which are applied generally. Therefore, the correct legal standard of review is whether the OLOH Ordinance is rationally related to its stated goals....

...To determine the object of the OLOH Ordinance we must begin with its text because "the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons."[57] The OLOH Ordinance does not discriminate against religious beliefs or regulate or prohibit conduct undertaken for religious reasons. The OLOH Ordinance does not refer to any of plaintiff's religious practices...


Section 2 - Violation Of Freedom Of Speech, Expression And Assembly, counts 3 (federal) and 4 (state) [click to read full complaint]

OLOH is not the only Historic District in Springfield which contains a place of worship and Springfield is not the only municipality in the commonwealth with places of worship in local historic districts. [there follows a list and description of 5 local historic districts]

The Massachusetts Cultural Resource Information System (MACRIS) allows a search of the Massachusetts Historical Commission database for information on historic properties and areas in the Commonwealth….it reveals that a number of communities in Western Massachusetts have religious institutions located within the boundaries of their respective Local Historic Districts. [there follows a list of 8 local historic districts with churches]

Mr. McCarroll searched MACRIS for communities beyond Western Massachusetts with local historic districts in which was a resource containing “catholic church” in its description. [there follows a list of 15 Catholic churches located in local historic districts in Massachusetts]

While plaintiff has brought a facial challenge to the OLOH Historic District no such challenge has been brought with regard to any of the other local historic districts in the commonwealth containing property owned by the Roman Catholic Church or any other religious denomination…..

…..Springfield did not prohibit all religious exercise anywhere within its municipal boundaries by the plaintiff. In fact, plaintiff admits to circumstances in which the OLOH Historic District Ordinance allows adequate alternative means of religious expression; “the Parish was merged with St. Mary’s Parish, East Springfield, under a new name, St. Mary Mother of Hope Parish.”[17] Merely designating a building as historical is not an infringement of any constitutional right because the designation itself does nothing to restrict religious practice. Plaintiff’s facial challenge to the OLOH Historic District Ordinance must fail because the challenged Ordinance has plainly legitimate sweep. Moreover, an issue ordinarily is not ripe for decision until a land owner has requested permission to act and has been denied the right to act, or has suffered actual and present harm as a result of the designation.[18]…..

…..Plaintiff’s constitutional claims are based in large part upon the erroneous contention that the OLOH Ordinance purports to control plaintiff’s religious symbols. “[A] Latin cross is not merely a reaffirmation of Christian beliefs.”[29]. Our Lady of Hope was a central meeting point as religious, social and civic center for Hungry Hill residents. In 1945 with the end of World War II it was at the church that a Servicemen’s honor roll was erected to name all the 1000 young parish members who served, placing stars by those from Hungry Hill who had died.”[30] Simply because the exterior architectural features of the OLOH property may have some “religious content” or promote “a message consistent with a religious doctrine” does not make them “run afoul of the Establishment Clause.”[31] In the context of the OLOH Ordinance, the exterior architectural features have a dual significance partaking of both religion and government…..

…..religious symbolism is the use of symbols by a religion. Upon closing the OLOH Church, its former religious symbols were “reduced to profane (non-sacred) use.”[39] The object of the Historic Districts Act and the OLOH Ordinance is to protect the exterior architectural features of historically significant buildings and places. It is not to infringe upon or restrict practices because of their religious motivation. Springfield is not doing anything but regulating in a content neutral manner the exterior architectural features of the OLOH Historic District. The OLOH Ordinance governs actions and while it cannot interfere with plaintiff’s religious believe and opinions, the Ordinance may interfere with plaintiff’s practices. The OLOH Ordinance does not interfere with plaintiff in the performance of any religious rituals or Catholic ceremonies of worship. The OLOH Ordinance does not suppress the Catholic religion or religious conduct. The OLOH Ordinance neither encourages nor discourages participation in religion. To permit plaintiff to excuse illegal alteration of the exterior architectural features of the OLOH Historic District because of his religious beliefs “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”[40]…

Limiting the destruction or substantial alteration of the exterior architectural features of the OLOH property is not even a hypothetical infringement of plaintiff’s purported free speech rights. [86] Where, as in this case, the communicative content of the regulated activity—its message---is irrelevant to the government’s reason for regulation then it is conduct, not speech, which is being regulated and the First Amendment values are not implicated…

Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus count 7, Violation Of Due Process [click to read full complaint]

Ordinarily a municipality’s reason for creating a new historic district is not reviewable.[22] The record here reveals a reasonable basis for the enactment of the OLOH Historic District. It was created to “protect the architectural integrity of Our Lady of Hope Church, which is scheduled to be closed and is possibly threatened by demolition.”[23] As the Planning Department report pointed out:

Our Lady of Hope Church is slated to be closed by the Diocese of Springfield at the end of 2009. The last church to be closed in Springfield was St. Joseph’s Church located on East Columbus Avenue. Although listed on the National Register of Historic Places, it was sold to a developer and demolished for a strip commercial complex. This proposed local historic district is being proposed to avoid the same possible fate for Our Lady of Hope.[24]…..

…..In 1898, plaintiff transformed itself into a “body politic and corporation sole” and thereby became “subject to all the liabilities and limitations imposed by the Public Statutes.”[33]…Plaintiff does not challenge the OLOH Historic District to use the OLOH site exclusively for religious purposes. Although the plaintiff retains title to the OLOH property, it is no longer used as a place of sacred worship. In fact, plaintiff admits that “the Our Lady of Hope Church was closed”[37], its assets “were transferred” and “the Church [is] out of service with respect to religious worship.”[38]…..

...In this case the Court should apply a deferential minimum rationality standard of review to the OLOH Ordinance because it is a police power regulation which imposes a general applicable rule of conduct designed to advance society's broad interest in preserving significant exterior architectural features and historic properties...

...the purpose of the Historic District Act and the OLOH Ordinance fit "easily within the established boundaries of 'benevolent neutrality,' in which religious exercise is supported but not promoted"[71] and afford no basis to conclude that the legislative intent was to advance religion...

...the court should look at the specific public interests at stake in creating the OLOH Ordinance. The Historic District Ordinance limits destruction or substantial alteration of the exterior of OLOH property without prior permission of the Springfield Historical Commission. An individual's religious beliefs do not "excuse him from compliance with an otherwise valid law prohibiting conduct than the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition."[83]

The OLOH Historic District Ordinance does not suppress any element of the Catholic worship service. The OLOH Ordinance does not regulate any religious or secular uses of the property by the plaintiff or anyone else. The OLOH Historic District Ordinance does not single out for discriminatory treatment any Catholic religious practice...the Historic District Ordinance merely regulates a secular activity — significant alteration or destruction of the exterior architectural features of a significantly important property in Springfield. The Ordinance does not pressure the plaintiff to abandon its religious beliefs through financial or criminal penalties or impose taxes upon the exercise of plaintiff's religion...


Section 4, complaints under the Religious Land Use And Institutionalized Person Act

4.a. (RLUIPA) discrimination [click to read full complaint]

Plaintiff, conflating two separate provisions in RLUIPA [116], argues that the “equal terms and nondiscrimination mandates of RLUIPA are also violated by the Ordinance.” [117] These two separate RLUIPA provisions will be discussed separately herein. RLUIPA’s equal terms provision [118] provides:

No government shall impose or implement a land use regulation in a manner that treats  a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

 … nothing in the OLOH Historic District Ordinance’s objectives treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose. [122] Although the OLOH Historic District Ordinance contains only RCB [Roman Catholic Bishop of Springfield] owned property, that fact alone is not enough to prove a violation of RLUIPA’s Equal Terms provision. ….Plaintiff’s failure to identify any property which is similarly situated to the OLOH site and better-treated, in regard to the objectives of the OLOH Ordinance and the purposes of the Historic Districts Act, is fatal to plaintiff’s RLUIPA claims...

…Plaintiff argues that the OLOH Ordinance violates the RLUIPA because it “targeted the Our Lady of Hope Church”, “is but a single-parcel” and “improperly ‘targets’ only church property owned by the RCB.” [125] As previously discussed plaintiff closed the OLOH church, ceased religious exercises on the OLOH site and relocated the Parish to a different part of Springfield. The creation of the OLOH Historic District followed a statutorily prescribed process aimed at preserving the significant architectural features existing on the OLOH site which seemed to be potentially threatened with destruction by the plaintiff. “The last church to be closed in Springfield was St. Joseph’s Church located on East Columbus Avenue. Although listed on the National Register of Historic Places, it was sold to a developer and demolished for a strip commercial complex.  This proposed local historic district is being proposed to avoid the same possible fate for Our Lady of Hope.” [126]...

…The creation of local historic districts is aimed at preserving exterior architectural features of significant historic properties located within the commonwealth. The preservation of such properties does not have any religious motivation whatsoever  …..since there is no evidence in the record from which it may be reasonably inferred that Springfield established the OLOH Historic District in order to discriminate against the Catholic religion, plaintiff’s RLUIPA discrimination claims fails as a matter of law.

Section 4.b. (RLUIPA) substantial burden [click to read full complaint]

Under RLUIPA the government is prohibited from imposing or implementing any land use regulation “in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution. [90] A RLUIPA plaintiff “bears the burden of persuasion” on whether the challenged laws, or Springfield’s “application of those laws” to plaintiff “substantially burdens its exercise of religion.” [91] Since the OLOH Historic District Ordinance does not impose a “substantial burden” on “religious exercise” plaintiff cannot carry its RLUIPA burden of proof.

Plaintiff’s position is implicitly grounded upon a fundamental misconception of the nature of Historic District legislation. The Historic Districts Act and its legislative derivative, the OLOH Ordinance, do not regulate the religious or any other uses of property. Plaintiff abandoned religious use of the OLOH property; Springfield is not preventing or inhibiting plaintiff from reviving it’s former religious use of the OLOH property. Unlike traditional zoning the Historic District Act and the OLOH Ordinance strive to preserve from unlawful alteration the existing features of property…

…they forbid the substantial alteration or destruction of the exterior architectural features of property without prior approval of the Springfield Historical Commission. Because neither the Historic Districts Act nor the OLOH Historic District limits or restricts plaintiff’s use or development of the OLOH site these local preservations laws do not, as a matter of law, constitute a “land use regulation” [94] within the meaning of RLUIPA; consequently, plaintiff’s RLUIPA claims against Springfield must be dismissed.

…the plaintiff does not cite any current or planned future use of the OLOH site for religious exercises of any kind. In an attempt to invoke RLUIPA, plaintiff describes the process it generally follows when selling its property to a third part:

…an agreement must be reached between the Bishop and the purchaser that any religious symbols may not be desecrated or put to a sordid use. If such an accommodation cannot be reached, all religious symbols are removed from the interior and exterior building. This would involve the removal of all exterior Christian crosses and stained glass windows depicting religious symbols or scenes. Where it is either impossible or impractical to remove religious symbols from the building  exterior (a frieze or carvings of sacred scripture) such symbols are covered with concrete or other suitable material to prevent desecration. In some instances, in order to make certain that religious symbols or expressions are not desecrated, such items must be properly destroyed. [101]

Nothing in the OLOH Ordinance prevents plaintiff from applying to the Springfield Historical Commission for a certificate to conduct these types of activities. The historical designation of the OLOH exterior architectural features does not transform the sale of the closed OLOH property, which was formerly used as a place of worship, into any form of “religious exercise” under RLUIPA. Plaintiff’s title to the OLOH property, or even its incidental use for religious purposes, would not convert plaintiff’s secular plan for the property, selling it, into a religious exercise protected by RLUIPA. In this regard RLUIPA’s legislative history is enlightening:

The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes. [102]

The right to sell, lease, or otherwise dispose of space which is no longer needed or used for religious exercises is not at the core of the free exercise of religious; it is not even on its periphery. Disposition of unneeded property is common commercial secular activity without any religious significance. RLIUPA does not protect such secular activities even when they are conducted by religious institutions. Creation of the OLOH Historic District does not give rise to a colorable RLUIPA claim. Springfield has done nothing to substantially burden plaintiff’s religious exercise. …..

…Plaintiff complains that the mere enactment of the Historic District Ordinance creates an inability to make changes to the exterior of the building without seeking a certificate of appropriateness, hardship or non-applicability and asserts that this process constitutes a “substantial burden: under RLUIPA.

Contrary to the plaintiff’s contentions, the Ordinance is not a substantial burden on plaintiff’s exercise of religion. The creation of the OLOH Historic District did not impose a significantly great restriction or onus on any exercise of plaintiff’s religion. It did not force plaintiff to choose between following the precepts of the Catholic religion and ownership of the OLOH Property. It did not force plaintiff to abandon the precepts of the Catholic religion or forfeit title to the OLOH property. Creation of the OLOH Historic District did not put pressure on plaintiff to modify his religious behavior or violate his religious beliefs. The ordinance merely submits the plaintiff to the same restrictions that any other landowner in a local historic district must fact. The plaintiff is not entitled to special government treatment that would violate the Establishment Clause.

Plaintiff speculates that, at some time in the future, it could face “delay, expense and uncertainly” from the mere filing for a certificate with the Springfield Historic Commission. [107] This minor responsibility is a normal incident of property ownership in a historic district; it is not substantial under RLUIPA…[108]…

Plaintiff’s brief cites that the provision of fines from $10 to $500 dollars under section thirteen of the Historic District Act is evidence of a “substantial burden”. However, there is nothing in the Historic Ordinance or state statute that singles out anyone for special burdens on the basis of religious callings. It appears that plaintiff is simply averse to complying with the ordinance’s requirements…


Section 4.c. (RLUIPA) unreasonable limitation [click to read full complaint]

Plaintiff argues that RLUIPA’s exclusions and limits provisions [128] “are not limited to cases of total exclusion of a religious practice from a jurisdiction. They may exist where a city acts arbitrarily or discriminatorily or where it simply deprives churches of reasonable opportunities to practice their religion.” [129] That proposition has no application in this case.

First, it is undisputed that the OLOH Historic District Ordinance does not totally exclude the Catholic religion from Springfield. It was the plaintiff, not Springfield, which closed the OLOH church and transferred its assets elsewhere. Second, the exclusions and limits provisions in RLUIPA do not expressly address religious practices. It deals specifically with land use regulations which unreasonably limit “religions assemblies, institutions, or structures within a jurisdiction. [130] In this case there is absolutely no evidence of any kind that the OLOH Ordinance unreasonably limits any religion or religious assemblies, institution, or structures within Springfield. Indeed the undisputed facts of the case are that after plaintiff closed the “our Lady of Hope Church… the Parish was merged with St. Mary’s Parish, East Springfield, under a new name, St. Mary Mother of Hope Parish.”[131] Thus, the …unreasonable exclusions and limits provisions in RLUIPA do not apply in this case.

Conclusion

For the reasons set forth herein, Springfield submits that it is entitled to summary judgment on all counts, and respectfully requests the courts to declare the OLOH Historic District Ordinance valid under the Federal and State constitution and RLUIPA.

In addition Springfield requests the court to mandate that plaintiff file a timely application with the Springfield Historical Commission before attempting to alter or demolish any of the exterior architectural features of the OLOH site.

Respectfully submitted, Defendants: City of Springfield et al.