Monday, March 9, 2009

Constitutional Lawyer weighs in on Bill 1098

Letter from Philip A. Lacovara,
Senior Counsel,
Mayer Brown LLP,
to members of the Judiciary Committee

Attorney Lacovara, a member of the Diocese of Bridgeport, has more than 40 years' experience as a constitutional law teacher and practitioner.

Sunday, March 8, 2009

Dear Member of the Judiciary Committee:When you entered the Legislature, I assume that you took an oath consistent with the Supremacy Clause of the United States Constitution recognizing that the Constitution is the Supreme Law of the Land and that all State officials are bound to respect it.

You now have before your Committee a bill that tests your fidelity to your constitutional duty. The bill is No. 1098, which candidly announces that its purpose is to "revise the corporate governance provisions [of the Connecticut Statutes] applicable to the Roman Catholic Church."

In more than forty years as a constitutional law teacher and practitioner, I cannot recall a single piece of proposed legislation at any level of government that more patently runs afoul of the Establishment Clause and the Free Exercise Clause of the First Amendment that does this bill.
I write to you as a Connecticut taxpayer, as a Catholic, and as a constitutional lawyer. This last capacity is most relevant for present purposes.
I have taught constitutional law at Columbia Law School, Georgetown University Law Center, and Hunter College of the City University of New York. I also have served as Deputy Solicitor General of the United States and as Counsel to the Watergate Special Prosecutor. I have argued 18 cases before the Supreme Court of the United States, most involving constitutional issues.
I find it utterly astonishing that Bill 1098 could be taken seriously enough to warrant a hearing before your Committee. I would find it difficult to use it as a "hypothetical" in one of my constitutional law classes, because even first year law students would have so little difficulty seeing why the bill goes well beyond the powers that the Constitution allows the States to exercise in dealing with organized churches.
Ever since we passed beyond the Colonial period during which several Colonies in New England barred Catholics and Catholic priests from practicing their faith as they chose to practice it, all persons — and churches — in this country have been protected by the fundamental guarantee of religious autonomy enshrined in the First Amendment.
One of the key doctrines embodied in this protection of religious liberty is that the State has no legitimate power to intrude into the internal affairs of a hierarchical church. That is, the guarantee of religious liberty applies not only to the private beliefs of individuals, it also protects the autonomy of organized churches assuch. That principle has been established for two centuries. The so-called "internal affairs" doctrine means that the leaders of a hierarchical church have the final and absolute authority to decide how the church will be organized and governed, and no State may override that autonomy by purporting to require that the church be reorganized in some other way simply because a public official may think that a different organization is "better" for the members of the congregation.
The great exponent of First Amendment religious liberty, Justice William Brennan, explained in one of the leading examples of the Supreme Court's enforcement of religious autonomy against State intrusion that a hierarchical church has exclusive authority to decide whether to reorganize its diocesan corporate structure and that the First Amendment deprives the State of any role in substituting its own views:

"It suffices to note that the reorganization of the Diocese involves a matter of internal church government, an issue at the core of ecclesiastical affairs; Arts. 57 and 64 of the Mother Church constitution commit such questions of church polity to the final province of the Holy Assembly. Kedroff v. St. Nicholas Cathedral, 344U.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'."

The quotation is from Justice Brennan's opinion for the Court in SERBIANORTHODOX DIOCESE v. MILIVOJEVICH, 426 U.S. 696, 721-22 (1976).
Legislative Bill 1068 is explicitly designed to have the State of Connecticut substitute its view about desirable structure of the governance of the Catholic Church.
AS the Supreme Court has warned over and over, however, a State Legislature may not usurp the power of the Catholic Church to decide this matter for itself "free from state interference." There is no doubt that, if the Legislature were to enact this bill, the federal courts would strike it down as unconstitutional on its face. I urge you not to provoke such a constitutional confrontation.
It has been said that this bill merely revises the existing statute providing for the incorporation of Catholic parishes and that the Legislature must have residual constitutional power to change those provisions as it thinks fit. This is a fatuous argument. When a State has the competence to address a matter, it must do in accord with the Constitution. For example, the fact that the State may enactlegislation consistent with the Constitution that outlaws racial segregation hardly implies that the Legislature must equally have power to enact legislation commanding racial segregation.
This distinction is obvious and applies here equally. That, of course, is precisely the logical flaw that dooms the argument put forth by proponents of this bill.
The existing statute defers to the Canon Law of the Catholic Church on the respective roles of the Bishop of the Diocese and his other canonical subordinates, including parish pastors. It places them in supervisory authority over all of the affairs of the parish communities, including "administrative" affairs. Within the meaning of Supreme Court cases guaranteeing the autonomy of religious superiors in a hierarchical church such as the Catholic Church over matters of internal governance, the existing statute respects the Church's autonomy.
By contrast, the bill before your committee would purport to overrule the Church's absolute autonomy over its form of internal governance and to substitute a form of government that flies in the face of 2000 years of Catholic Church law and practice. The United States Constitution forbids that assertion of State power.
Finally, it is said that some members of a Catholic parish in which a priest engaged in defalcation have suggested this legislation. It is easy to find clusters of persons who have pet "reforms" on a wide variety of issues. I suggest that the responsibility of a member of the State Legislature is to put clear and fundamental constitutional values ahead of political expediency.
In light of what I understand have been the comprehensive efforts of the Church leadership to assure financial responsibility within the Church, this bill seems to be a "solution" in search of a problem. In any event, it is a "solution" that our constitutional system does not allow the State to impose.
I appreciate your consideration of these views.
Philip Allen Lacovara

1 comment:

  1. I've sent this letter to one of the bill's sponsors:

    Dear Rep. Lawlor,

    I'm a liberal-leaning Catholic, and a member of Voice of the Faithful. I support gay marriage and a greater role by laity in church governance.

    But I oppose SB 1098 because church reform must come from the pews, not be mandated by politicians. This state intervention in internal church governance is a clear violation of the 1st Amendment.

    By the same rationale, the Utah legislature could mandate the reverse -- that all congregational church boards dissolve and turn over church management to bishops and presbyters.

    Audits of funds YES;
    state-mandated structuring NO.

    Sincerely,
    John Kelley

    ReplyDelete