This is a lazy post- here is a copy of what the dean of Boston College law school had to say on 1098, I hope you find it interesting. I found the last line very telling.
STATEMENT OF JOHN GARVEY
BEFORE THE CONNECTICUT JUDICIARY COMMITTEE
ON RAISED BILL 1098
MARCH 11, 2009
Members of the Judiciary Committee:
Thank you very much for allowing me to say a few words about Raised Bill 1098. My name is John Garvey. I am the Dean of Boston College Law School, and the immediate Past President of the Association of American Law Schools. I am the author of RELIGION AND THE CONSTITUTION (Aspen, 2d. ed. 2006), the leading textbook on the subject of law and religion. It has been adopted at law schools across the country.
Raised Bill 1098 is intended to "revise the corporate governance provisions applicable to the Roman Catholic Church." Under existing law parishes are incorporated and have five members – the bishop, the vicar general, the pastor, and two lay people appointed annually by the clerical members.1 The corporation "shall at all times be subject to the general laws and discipline of the Roman Catholic Church . . . ."2 Under the proposed law parish corporations would be governed by a board of directors with 7-13 lay members elected from the congregation. The bishop, though an ex officio member of the board, would have no right to vote. The pastor of the church would report to the board of directors "with respect to administrative and financial matters." These would include "strategic plans and capital projects," "outreach programs and other services . . . provided to the community."3
Let me begin my remarks with a history lesson. The first amendment to the United States Constitution begins with the statement, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Though there is disagreement about the outer edges of this prohibition, everyone agrees that it was intended to forbid the creation of an established church at the federal level. When the fourteenth amendment was adopted, the same rule was applied to the states.4 The British have an established church, the Church of England. Its head is Queen Elizabeth. She appoints bishops and archbishops, on the advice of the Prime Minister. Its assets are managed by the Church Commissioners, a group that answers to Parliament, and that includes among its members the Prime Minister, the Lord
1 Conn. Gen. Stat. Ann. § 33-279.
2 Conn. Gen. Stat. Ann. § 33.281.
3 Raised Bill No. 1098, § 1(e)-(f).
4 Everson v. Board of Education, 330 U.S. 1 (1947).
Chancellor, the Home Secretary, the Speaker of the House, and a few other government officials. This is what it means to have an established church – not just that the government contributes taxes to support it, but that the government controls its personnel and property. In America we chose instead to protect religious liberty and to forbid religious establishments.
5 Section 1(h) of the bill proposes to leave with the bishop and the pastor their rights "in matters pertaining exclusively to religious tenets and practices" (emphasis added).
6 See, for example, the Catechism of the Catholic Church ¶¶ 880, 894-895 (1994). And compare this view with Normal H. Maring and Winthrop S. Hudson, A Baptist Manual of Polity and Practice chs. 3-5 (rev. ed. 1991).
Raised Bill 1098 would like to improve the corporate governance of the Roman Catholic Church. If I may speak colloquially, what it tries to do is make the Church more "democratic." It takes control of the parish corporation away from the clergy (the bishop, the vicar general, and the pastor) and gives it to the congregation. The pastor would report to a board chosen from the congregation on matters concerning the parish’s "plans," "programs," and "services."5 This is a form of church government we find congenial in New England. The Puritans who settled in Connecticut adopted it in their churches, which today we call Congregational. It is the prevailing form of governance in Baptist churches and Disciples of Christ. At the Last Judgment we may learn whether it is the arrangement Jesus preferred for his followers.
Right now, though, that is a matter that divides Christian churches. Catholics, Episcopalians, the Russian Orthodox Church, Mormons, and some Lutheran churches are organized in a hierarchical fashion, with bishops and priests exercising authority other church members don’t have. This form of organization derives from theological beliefs – understandings of how God speaks about the Church in the gospels and Christian tradition.6 The bill you are considering would like to make the Catholic Church less hierarchical and more congregational. If Connecticut had an established church you could do this. When Oliver Cromwell was Lord Protector he undertook to make the Church of England more congregational. In America, though, this kind of action has been unconstitutional since the dawn of the republic.
This is not a controversial point. In the last century no member of the Supreme Court was more admired for his progressive views than Justice Brennan. Here is what he said about this issue in 1976. The case involved the American branch of the Serbian Orthodox Church, headquartered in Yugoslavia. In 1963 the Mother Church defrocked the American bishop (Milivojevich) and split the American diocese in three parts. Some American church members were unhappy with this, because they feared that Tito’s communist government had infected the Mother Church. Milivojevich resisted the order, saying, "I do not recognize this communist decision from
2
7 John T. Noonan, The Believer and the Powers That Are 326 (1987).
8 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 721-722 (1976).
9 See Episcopal Church Cases, 198 P.3rd 66 (Cal. 2009).
10 Conn. Gen. Stat. Ann. § 33-264a (2005).
11 Id. § 33-264c.
12 Id. § 33-265.
Belgrade."7 The Illinois Supreme Court sided with Milivojevich. The Supreme Court reversed. Here is what Justice Brennan said:8
the reorganization of the Diocese involves a matter of internal church government, an issue at the core of ecclesiastical affairs[. The] Mother Church constitution commit[s] such questions [to the leaders of the Church]. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952), stated that religious freedom encompasses the "power [of religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."
It does not matter, as some have suggested, that Connecticut’s bill was drafted at the behest of unhappy Catholic parishoners. In any large organization there will be disgruntled members. Some members of the Serbian Orthodox Church were unhappy with the hierarchy in Milivojevich. Some Episcopalians are unhappy with their hierarchy for ordaining a gay man as bishop of New Hampshire.9 It is not the prerogative of the government to provide relief for these unhappy members by giving them control of their church, its personnel, or its property.
Raised Bill 1098 is unconstitutional, then, because it violates the first amendment rule that the legislature cannot dictate the structure of church government.
The bill is unconstitutional for a second reason as well. This amendment, taking control of the church corporation away from the clergy and giving it to the congregation, applies only to the Catholic Church. The general rule for forming religious corporations in Connecticut is stated at the beginning of Title 33, Chapter 598 of the General Statutes: "Three or more persons uniting for public worship may form a [religious] corporation[.]"10 The corporation decides for itself what "provisions relative to its membership, affairs and government" it wants to adopt.11 Part II of the Chapter has provisions designed to fit the particular needs of several large denominations, though it is important to understand that these are accommodations, not legislative improvements on the churches’ own structures. Ecclesiastical societies in communion with the Episcopal Church are denominated "parishes" (as that Church calls them).12 And
[t]he manner of conducting the parish, the qualifications for membership of the parish . . . , the numbers of the officers of the parish, their powers and
3
13 Id. § 33-268.
14 Id. § 33-277.
15 Code of Canon Law, cans. 515, 532, 537, 1256.
16 456 U.S. 228, 254 (1982).
17 Id. at 244-245.
duties and the manner of their appointment . . . shall be such as are provided and prescribed by the constiitution, canons and regulations of said Protestant Episcopal Church in this state.
Methodists and Lutherans are given the same flexibility. "The trustees of each Methodist Church shall be elected . . . in such . . . manner as the discipline of the Methodist Church may prescribe."13 "The trustees of each Augustana Evangelical Lutheran congregation shall be elected by the ballot of such electors as are by the rules and regulations of such congregations competent to vote for trustees . . . ."14 Catholics are given the same kind of accommodation by the existing § 33-279. It locates control of parish corporations (as does the Code of Canon Law15) in the bishop, the vicar-general, and the pastor. The two lay members are appointed annually by the ecclesiastical members. Raised Bill 1098 dictates for Catholics alone that the religious corporation must be governed by a board of directors of 7-13 members elected from the congregation, and that the pastor must report to the board.
This resembles the amendment Minnesota passed to its charitable solicitation statute in 1978. That law subjected churches who got more than 50% of their contributions from nonmembers to registration and reporting requirements. Justice Brennan, writing again for the Court in Larson v. Valente, made this interesting observation:16
The legislative history discloses that [an earlier draft] would bring a Roman Catholic Archdiocese within the Act, that the legislators did not want the amendment to have that effect, and that an amendment deleting the [offending] clause was passed in committee for the sole purpose of exempting the Archdiocese from the provisions of the Act. On the other hand, there were certain religious organizations [the Moonies] that the legislators did not want to exempt from the Act.
This lack of neutrality was fatal. "The clearest command of the Establishment Clause," Justice Brennan said, "is that one religious denomination cannot be officially preferred over another. . . . This constitutional prohibition of denominational preferences is [also] inextricably connected with the continuing vitality of the Free Exercise Clause."17
It makes no difference that the Connecticut bill discriminates against Catholics rather than members of the Unification Church. It may be that in the current political climate, bishops in the Catholic Church are an easier target than the Reverend Moon. But whether that is true or not, the
4 5
constitutional rule of denominational neutrality applies to all churches large and small.
I appreciate the opportunity to speak about this bill. I am sorry to say that I think it is very ill considered. Rarely have I seen a proposal advanced at this level of government that is so plainly unconstitutional.
