Last time we discussed Chicago-area Bishop Paprocki's attempts to salvage some of the rapidly fading Charitable Immunity doctrine and use the protections that remain to arrest what he considers the current unchecked liability situation vis-a-vis the Catholic church and lawsuits filed by abuse victims. Moreover, he provided a wish list in his address to the National Diocesan Attorneys Association that would actually expand Charitable Immunity (albeit under different names).
Here we address a paper that Paprocki often refers to in speeches and articles. The Rev. John Coughlin has written a chapter titled "Canon Law and Constitution Law: The First Amendment: Anthropology, Separation, and Neutrality". It is numbered "Chapter Four" and is apparently part of an upcoming book. It can be viewed online here, as part of the offerings of the non-profit Social Science Research Network (SSRN).
Paprocki quotes Coughlin to support his contention that there are constitutional protections that would deny large damage awards to victims:
...The state has every right to encourage shareholders in a for profit corporation to change corporate leadership by holding the corporation liable for negligence on the part of the corporate executives and thus cutting into the enterprise’s profits. The application of the same liability rules loses its claim to neutrality when state law punishes a church for making what is essentially a religious decision and compels the church to divert funds from its charitable and educational purposes to compensate victims...
Coughlin's quixotic understanding that "religious" decisions are grounded in and have great protection from the U.S. Constitution, and that such decisions trump other values, is not confined to the argument about damage awards. In property disputes as well, he asserts that there is no middle ground. The state simply cannot tell the Church what to do with its land and buildings - even if a diocese has chosen to go the bankruptcy route. With regard to sex abuse, he goes so far as to apply his reasoning to a bishop's decision about employment retention for a troubled priest. According to Coughlin, even if the priest offends again, the original decision (the employment retention) would still be valid and protected, because it was a religious decision. Not kidding. We will now look at his paper and see where, exactly, he gets the idea that this is a valid point.
This article is about 50 pages long. The parts most pertinent to abuse settlements and property disputes are in pages 30-52. However, these are built on Coughlin's earlier points about the real nature of Church/state separation, so we start there.
He explains that the Church is not the creation of the state - and vice versa. Each has a place, and needs the other. While this is momentarily reassuring, he does not explain why the RCC in the past has often transgressed this boundary, preferring to wield political power of great significance in addition to their spiritual mandate.
He says that the real significance of the Church is that it symbolizes what lies beyond, and that religious language shows the way toward the truth that the highest human dignity lies in self-transcendence. He says that in "... submitting to the state's rules for social order, the church reaps the advantages of these rules and sets an example in support of the rule of law. The cooperation of the church, however, is not intended to suggest that it endorses every instance of the state's public policy. It remains critical to the church's function of affording a language of transcendence that the church maintains a prophetic voice in the public realm." (pg. 3)
Throughout this discussion his emphasis is on belief - not action - and he is careful about disclaiming any desire on the Church's part for power or influence in the public realm. That comes later, when he begins to complain about damage awards and the debilitating effects of bankruptcy on the well-being of the Church.
Coughlin often opposes "secularism" to the aims of the church. He does not define it well and most often uses the work "ideology" rather than "religion" in describing it. However, he never actually defines what it is, so it's difficult to take seriously his claims that "secularism" runs rampant in the culture as a state-endorsed substitute for the cultural agency formerly held by the Church.
He talks next (pg. 9) about the two strands of thought underpinning the separation clause of the 1st Amendment - the theological and the rationalist. He finds that the theological is rooted in the Reformation which followed Martin Luther. To him, the fact that the freedom of religion called for is specific to a Protestant majority position and world view somehow allows the RCC world view to slip in as well.
Next, he discusses the rationalist strand, and finds that somehow, the struggle of evangelicals (the minority position among Protestant church at the time of the adoption of the 1st Amendment) is supposed to parallel subsequent struggles of the RCC to find a place in American culture. Not everyone will see the connection.
In the next section he draws some interesting history lessons out of the difference between the Congregational churches in New England (who supported the Revolution) and the Anglican church in Virginia (who did not). Apparently, disestablishment made a lot more sense if it was a question of disestablishing the church of your former enemy. A bit stickier question in New England arose as more and more religions demanded their own accommodation, after the initial bow to Congregationalists. Especially is this true in the states where the Congregational church continued to be supported with taxes well past 1800. One of these churches seeking accommodation, of course, was the RCC. And, there is no doubt that in order to reach a level playing field, the RCC had to overcome discrimination throughout the 19th century - a point not lost on Rev. Coughlin.
On pg. 23 Coughlin expresses his fondness for that "classic work" by Mark De Wolfe Howe, "The Garden and the Wilderness". Never heard of it? Me, either.
In it, Howe criticized the growing tendency of the Supreme Court in the middle of the 20th century to apply strict separation of Church and state following the Lemon and Everson decisions. Howe characterized these cases as the "Secularist's rule of separation" that threatened to "cast out the theology of the first Amendment". This squabbling about original intent dominates many paragraphs of Coughlin's chapter as he buttresses his conviction that the U. S. Government has done exactly what Howe and others feared - it has encroached upon the garden of religion.
Howe's actual image is that the 1st Amendment was not intended to separate the garden (religion) from the wilderness (the state) for the benefit of the state - it was the opposite. He believed that the garden needed to be protected from the wilderness. And so does Coughlin. In order to effect this, both men believe in robust protections for the garden, even to the point of allowing the override of otherwise reasonable and neutral laws of the state.
The anthropological aspect espoused by Coughlin is actually a more powerful argument than either common law or canon law - it concerns "what is fair" rather than what is written and codified into a body of law. It therefore resembles the movement of the Holy Spirit - dangerously free and hard to pin down. Under this reasoning, dignity and basic human rights may evolve as society evolves - as we have seen in the movements of gay rights, women's rights, and civil rights.
Supposing this to be true, and that "natural law" is as good for religion as it is for the civil area, we should then advocate public support for all religions, not just the Protestant one, or just the Catholic one. It seems to me that the policy first meant for the Protestant faith (as Coughlin argues) can be extended to the RCC only by also continuing the extension to all religions.
Is this really what Coughlin wants? Or does he want an exception made for only the RCC? If he wants just the exception, this exclusivity sounds like the other "we are above the law" church arguments justifying employment retention of problem priests and diocesan dominance during parish property controversies. But, if it is to be valid, his argument must stand for more than the immediate corporate interest of one religion - namely, that of the RCC perishing from their current financial distress.
A side issue is: if Coughlin and others are convinced that "secularism" is a religion, and if the 1st Amendment prohibits the establishment of a religion, then why are they not able to argue and prove that "secularism" should be outlawed? On pg. 29, for example, he talks about the "dominant secular approach in public education". His point is that "non-religious" is essentially the same as "irreligious" - harmful to religion. He claims there is no middle ground.
In pages 35-38 he shows the same tendency when discussing the various Supreme Court property cases - there is no middle ground, whether the subject is Watson, Kedroff or Keshik. One must see things through either a secular lens, or a religious one. The neutral rules approach of Jones v. Wolf is anathema to Coughlin. That approach states that "a reasonable and generally applicable law will pass muster against a free exercise claim".
Here I believe we come to the heart of Coughlin's approach. He disputes Jones v. Wolf, and would rather that free exercise claims are allowed to prevail over "reasonable" arguments. But, if generally applicable laws - such as those preventing and punishing child sexual abuse - are made subordinate to a free exercise claim - what happens to the public good? And, what happens to the moral integrity of the church that would insist on such a free exercise claim? This question is not addressed by Rev. Coughlin.
In pg. 39 and ff. he discusses three important Supreme Count cases: Borne v. Flores, Jones v. Wolfe, and Smith. All of these have upheld neutrality as applied to church/state disputes, and minimized exceptions based on religious prerogatives. Not surprisingly, Coughlin disputes their conclusions. Indeed, he attacks the very idea of neutrality. He insists that what looks like neutrality from the civil point of view may be unfair and harmful to the religion when looked at from within the faith-structure of the religious entity. Thus he has, essentially, a religious world view, and never really gives this up. This robs his arguments of any effect they might have on a non-believer, and it also calls into question (for this believer, anyway) the application of his logic to the issues of church property and sexual abuse settlements, to which we now turn.
On pg. 43 he begins arguing that the submission of a diocese to the bankruptcy courts presents grave problems. Bankruptcy almost guarantees that the courts will be involved in telling the church what to do vis-a-vis assets. Pardon me if I lapse into the vernacular here and say "Well, duh."
It is incomprehensible that Coughlin can at the same time speak up for the "practicality" as he calls it (expediency?) of a diocese filing for bankruptcy in order to protect its assets and shortchange victims in settlement cases, and at the same time complain that by so doing, the courts will be involved in an unconstitutional encroachment on the rights of the RCC. Nevertheless, he gives it a try.
The real summit of his argument occurs around page 46 and ff., when he applies this reasoning to the sexual abuse crisis. This is the part that Paprocki often refers to, albeit obliquely. What Coughlin says here is stunning in its audacity. I will quote some passages at length, but first let me point out a few things.
We remember that the issue of liability is what brought us down this trail. Paprocki, when arguing that something - anything - was needed to replace Charitable Immunity, was casting about for ways to justify limiting or even eliminating damage awards to victims for sexual abuse. He stated that in granting these awards, courts were taking money away from the diocese (and, ultimately, from parishioners) unfairly, because those parishioners, and those contributing to the diocese, intended their money to go to good works - school lunch programs, hospitals, beds for the homeless, and so on - and not to the victims of sexual abuse, however just that verdict might appear, standing alone.
In this next section, Coughlin tries to undercut the state assignment of liability to the diocese. He argues that if the liability depends on a theory of torts that finds the diocesen officials responsible for the actions of the priest - as past employment retention decisions have well established, both within and outside the church - then that theory of tort liability is wrong. The bishops decision is sacred, in other words. The connection to the divine that the bishop claims, by virtue of apostolic succession, must be allowed to override the needs of the state in protecting its citizens from harm.
I think his argument is very mistaken. It may even be immoral. But, maybe your opinion differs. If you think that Coughlin has a point and that I have not understood, or that I have misrepresented his arguments, please let me know. In the meantime, here is the last word from Coughlin (footnotes are omitted):
_____
pg. 43
The application of neutral rules to legal issues related to the Catholic Church’s sexual abuse crisis raises a series of questions about the relation between canon law and constitutional law. At the outset, I should mention that I do not think that these questions admit of easy and clear answers, but the difficulty of the questions ought not to prevent them from being broached in a discussion about constitutional law. For example, consider the case of the diocese that files for bankruptcy relief under federal law in order to limit its liability to victims of child abuse. At first glance, it may seem simply to be a case of the application of neutral rules by the bankruptcy court. The diocese will be treated by the federal court in the same way that any other bankrupt petitioner is treated without regard to religious belief. A more careful examination, however, discloses at least three concerns that call into question the possibility of government neutrality toward the Church.
First, once the bankruptcy petition has been filed, the federal bankruptcy court now has effective control over many aspects of the diocese’s internal activity. For example, the federal court, pursuant to its statutory mandate, has the power to liquidate the diocesan property, determine which assets will be retained and which will be sold, limit the function of (or completely close) branches of the diocesan mission (such as hospitals, schools and orphanages), and set the salaries for diocesan employees, even that of the bishop. Such choices almost inevitably involve the federal court in the kind of administration entanglement that raises constitutional issues about the separation of church and state and religious freedom.
Second, the resolution of the bankruptcy claim might require that the federal bankruptcy interpret the meaning of canon law. In order to limit its liability, the diocese asserts that it is not the owner of parish property pursuant to canon law. The diocesan assertion arises in face of the specter of vibrant parish communities being forced to liquidate their property to pay for the settlement with the various creditors not the least of which are the plaintiff class of victims. To the contrary, the creditors argue that the ownership and control of parish property in canon law is more complex than the diocese suggests. In support of their argument, the creditors call upon an expert in canon law who testifies that although the juridic person of the parish owns (dominum) its own property, the diocesan bishop exercises the ultimate control (imperium) over the parish property.
The issue that arises for the bankruptcy court is akin to an intra-church dispute in a hierarchical church. Following the approach to intra-church disputes articulated in Jones v. Wolf, the federal court must now resolve the dispute by looking to the neutral rules of state law for the resolution of property disputes. As previously mentioned, this includes “the language of deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property.” The canon law and other church documents are to be interpreted by the federal court “in purely secular terms.” Would such a secular interpretation be able to resolve the canonical issue that arises from the diocesan renunciation of any ownership interest in parish property and its conflict with the principle of hierarchical governance in the Catholic Church? Should a civil court attempt to interpret the meaning of canon law in the first place?
Third, the diocesan position about the ownership of parish property raises an even more serious constitutional issue. Does the nature of the bankruptcy proceeding exert undue influence over the Catholic diocese with regard to the governance of church property? Certainly, the diocese is technically correct to assert that in canon law the juridic person of the parish own its property. Standing alone this assertion ignores the canonical reality that the parish is but an integral and subordinate part of the diocese and in under the authority of the diocesan bishop. For the reason just explained, the diocese takes this position in order to shield the property of parish communities from inclusion in the bankruptcy settlement. As pragmatic as the position of the diocese might prove in the bankruptcy proceeding, does the position not at the same time suggest that the parish property is controlled by the parish, a form of church governance more congregational than hierarchical? Will diocese be held to the position adopted in the bankruptcy proceeding in non-related controversies that concern the ownership and control of parish property in other civil courts?
Diocesan liability for clergy sexual abuse claims under state tort law poses similar questions to those associated with the bankruptcy example. Is the secular law that establishes diocesan liability truly neutral or does it impact on the diocese in concrete ways that violates a primary aim of the First Amendment?
Let us assume that a diocesan bishop learned during the 1970s that a priest in the diocese was alleged to have abused a minor. Let us further assume that the bishop also had certain theological, canonical, and pastoral concerns that ultimately convinced him to re-assign the guilty priest to ministry. Among these concerns were the Catholic belief in the forgiveness of any sin for a repentant sinner, the doctrine on the permanent nature of priestly orders, the pastoral need for priest personnel in the diocese, and the thought that a canonical trial to dismiss the priest was neither justified nor practical given the specific facts of the case. It may prove that the bishop’s theological, canonical, and pastoral judgment was correct, and that the priest does not offend again. However, we shall assume that subsequent to re-assignment, the priest then commits one or more additional criminal acts of sexual abuse.
Under the state criminal law, the priest should be prosecuted just as any other person accused of child abuse. However, I think that to the extent that the bishop’s decision to re-assign the priest rests on theological, canonical, or pastoral factors, it falls under the protection of the First Amendment. It is my position that as a mater of constitutional law such a decision must be left entirely to the diocesan bishop. At the same time, the religiously motivated decision of the bishop to re-assign the priest functions as the predicate upon which diocesan liability is established in state tort law. By acting as an incentive not to re-assign the priest, the state tort law is establishing an answer to the question: who is fit for priestly ministry in the Catholic Church.
To be clear, I am not arguing that the bishop ought to re-assign a priest who is a convicted felon to ministry, only that under the First Amendment the decision about fitness for priestly ministry is essentially a religious one and must be left to the proper church authority. When a theory of tort liability depends on the bishop’s decision about who is fit for priestly ministry, it seems to me to present a constitutional issue about government interference in a religious matter.
Another constitutional issue concerns the influence of state tort law on the religious freedom of the church to choose its own form of internal governance. The reason that the Catholic diocese is sued by a victim of clergy sexual abuse is at least in part financial. Generally, the diocese, not the offending priest or the parish where the abuse may have occurred, has the deep pockets to compensate the victim and pay attorney’s fees. It is the Catholic Church’s hierarchical form of government which makes the diocese liable for damages to the victims of clergy sexual abuse. While it is impossible to know with any certainty, the statistical evidence discussed in Chapter Three suggests that the rate of abuse among Catholic clergy may not be that different from other groups of clergy, public school teachers, and the population in general. Has the state tort law resulted in the situation in which the Catholic Church is exposed to a disproportionate burden to pay damages because of its hierarchical form of government?
In other words, does state law increase the risk of financial burden on a truly hierarchical church as opposed to those churches less hierarchical? This constitutional question is rendered all the more acute in light of the nineteenth century struggle of the Catholic Church to organize its property in accord with its hierarchical form of governance rather than the congregational form.
Apart from the nineteenth century record of anti-Catholicism in state law, the neutrality of state law with regard to church governance is called into question any time the law significantly influences the diocese to act contrary to canon law. If the state tort law exerts an influence over the religious freedom of a church to adopt a hierarchical form of internal governance it seems to raise a First Amendment issue. In a lawsuit against the diocese brought by victims of clergy sexual abuse, it is obviously beneficial to the diocese to claim that parish property does not count as part of the diocesan assets. The form of separate parish incorporation most financially advantageous to a diocese in defending against a plaintiff’s lawsuit would be one in which the diocese and the bishop actually had no control over parish assets. However, such a form of separate incorporation remains contrary to the one suggested by the Holy See to the bishops of the United States at the start of the twentieth century in which the bishop retains actual control over the separate parish incorporation consistent with the requirement of canon law. Has not state law has created the conditions in which the diocese would be more protected from financial liability if the diocese denies the hierarchical from and adopts a congregational form of governance?.......................
pg. 50
...................First, I am not arguing the First Amendment ought always to immunize religious entities from liability under state tort law. The church that negligently fails to repair its property, causing some innocent person to slip and fall, cannot claim that the First Amendment bars the victim from bringing a lawsuit under the neutral application of law. Rather, when tort liability significantly influences a decision such as who is fit for priestly ministry or what form of internal governance a church ought to adopt, it seems to me that the First Amendment must function to protect the church’s autonomy to reach such a decision free of government influence. In this regard, a church is different for constitutional purposes from any other corporate entity. For example, the First Amendment is not in play when a public school teacher sexually abuses a minor after the school had notice of a prior allegation of sexual abuse against the teacher. The teacher, administrator, and school district may be liable for damages under neutral application of law. The same is true of the Catholic hospital where surgical negligence by medical staff results in injury to the patient. On the other hand, the law loses its neutrality if the basis for liability acts as incentive for the church to adopt policies contrary to its religious beliefs.
Second, I do not think that the constitutional issues are resolved by the claim that state tort law is only influencing church policy and not directly controlling it. If the secular government says to the church, you are free to assign whomever you like to ministry without government interference, but adds if you should assign a convicted felon who then commits another crime, you will open yourself to enormous financial liability under state law, it seems to me that government position is acting to influence the church policy on fitness for ministry just as surely as a direct government usurpation of the authority to make such decisions would.
Likewise, if the government says to the church you are free to adopt whatever internal form of governance your religious creed might require, but adds if you adopt the hierarchical form rather than a congregational one, you may be financially penalized even to the point of bankruptcy, it is akin to a state law that requires churches to adopt the congregational form of government. In either case, the proximity of the impact of the state policy is not remote, rather it has a clear influence on a question that is from the church’s perspective essentially religious. This is precisely what the First Amendment was intended to prevent.
Could it be that the application of neutral tort rules in cases of clergy sexual abuse at the start of the twenty first century is accomplishing what plainly anti-Catholic statutes and court decisions could not accomplish during the nineteenth century? This returns us to Howe’s question with which I introduced this section on neutral rules: “Is it possible, perhaps that a church is denied its constitutional liberty in a state which compels it to adopt a form of government which its tradition repudiates?”
CONCLUSION
Mark De Wolf Howe is also quoted as saying about church-state issues, “what you think of all these questions depends on what you think of the Catholic Church.” It may also be the case that one’s answers to the constitutional questions about religious liberty correspond to whether one accepts the assumptions of canon law or the secular state about the proper relationship between church and state. To be sure, the First Amendment does not supply us with clear answers to precise legal questions but only some general principles on which to base such conclusions. Just as certainly, the adoption of the First Amendment was in no small part motivated by the desire to protect the church and religious liberty from the state and not to empower a dominant secular state.
-- the end --
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