The National Catholic Review
What was behind the church-state clash in Connecticut?
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New England is sometimes considered the birthplace of religious liberty in America because several of the early colonies were founded by adherents of denominations being persecuted in Europe in the seventeenth century. They saw the isolation of colonies in the new world as a haven to practice their faith.

But only their faith.

The irony of the deeply ingrained popular myth of religious liberty in New England is that most of the New England colonies were effectively closed to other Christian sects, especially Catholics. For generations, these colonies, including Connecticut, forbade public worship by Catholics and outlawed "popish” priests from practicing their ministry within the boundaries of the colonies.

All this supposedly changed when the Founding Fathers at the end of the eighteenth century proposed a series of amendments to the national Constitution guaranteeing various forms of personal liberty. Standing at the head of the list is the First Amendment, which bans Congress (and, by inference, the States as well) from "establishing” religion or "prohibiting the free exercise thereof.”

Recent developments in the Connecticut legislature, however, brought these issues to the fore in a dramatic confrontation between church and state. At least for a while, the state blinked, and the church won. What was going on?

On a Thursday afternoon in early March, the two co-chairmen of the legislature's Judiciary Committee, a joint committee of the two houses, introduced a bill with the rather vague but ominous title "An act modifying the corporate laws relating to certain religious corporations.” The "certain religious corporations” turned out to be solely the parishes of the Catholic Church in Connecticut. The legislative leaders had given church officials no notice of this initiative, and they scheduled it for a hearing the following Wednesday before the judiciary committee, which they thought that they controlled.

Behind the seemingly innocuous title addressing "corporate laws” relating to the church were truly breathtaking proposals. The goal was to force the restructuring of Catholic parishes to transform them into Catholic parallels to Congregationalist communities of the traditional New England design. Instead of having the pastor supervise all of the affairs of the parish, subject to the direction and control of the local ordinary, the bill would have transferred control of each parish to a "board of directors consisting of not less than seven nor more than thirteen lay members.” The lay board of directors was to be elected annually by the congregation.

Displacing the current corporate structure in which the local bishop effectively appoints and controls the corporate boards of individual parishes, which consist of the bishop, the vicar general and the pastor along with two lay persons selected by the church officials, the new structure would relegate the bishop to non-voting ex officio membership on the board. Not only would the pastor no longer even be a member of the board of his own parish, he would instead report to the lay board.

The bill purported to focus on reassigning primarily the "general administrative and financial powers” of the parish to the lay board and asserted that it was not to "derogate” from the responsibility of the bishop and the pastor "in matters pertaining exclusively to religious tenets and practices.” The bill reflected a crabbed view of what would have been left to the bishop and pastor, however, for it gave the lay board ultimate authority over, among other activities, "developing and implementing strategic plans and capital projects” and "developing outreach programs and other services to be provided to the community.” Thus, the bishop and the pastor would be stripped of their authority to establish and direct the work of the church in the world and their role would be restricted to doctrine and ritual.

The Church and the Connecticut Legislature

As with virtually any assault on the traditional role of the clergy in the Catholic Church, the back story illuminates the issues that otherwise may be obscure. As it happens, the two co-chairmen of the Judiciary Committee have taken offense at several of the church's teachings on moral questions, particularly issues dealing with gay rights. The Connecticut legislative leaders have clashed with church officials on their efforts to broaden the rights of gays and lesbians. For example, the church actively (and unsuccessfully) opposed a "civil union” bill that the legislature adopted. Despite a substantial Catholic population, Connecticut now is one of the few states to create even a right to "gay marriage.” (Massachusetts and California are the others, but California voters in November adopted a state constitutional overturning that policy).

The church also lost the legislative battle over the "morning after” pill, which most church leaders view as the equivalent of an early-term abortifacient. Over church opposition, the Connecticut legislature required all hospitals in the state, including Catholic hospitals and Catholic health care workers, to inform rape victims of the availability of this treatment and to provide the therapy, if requested, regardless of conscientious scruples forbidding cooperation with this perceived moral evil. Also on the legislative drawing boards are measures encouraging stem cell research using embryonic stems cells and creating a right to "death with dignity,” the clever euphemism for assisted suicide.

In a practical sense, the church has found itself in a weak political position to resist socially "progressive” measures like these. The loss of political clout resulted from twin factors for which church leaders themselves were at least partly responsible. The first is the clergy sexual abuse scandal. Even faithful Catholics, including those in elective office, share the wide perception that many church leaders failed to act early enough or aggressively enough to protect the young and vulnerable from clerical predators. Even the newer cadre of bishops must labor under the loss of moral credibility resulting from the carelessness or naiveté of their predecessors. It has become politically easy for proponents of policies that offend important church principles to nullify church statements on moral issues by countering that the hierarchy forfeited its right to the moral high ground.

Nowhere was this self-inflicted wound of greater impact than in another struggle that the church leadership lost before the Connecticut legislature a few years ago. Led by some of the same elements behind the parish restructuring bill, the legislature brushed aside objections to enlarging the statute of limitations in cases involving sexual abuse of minors. In all states, there are time limits that prevent an allegedly aggrieved person from filing a law suit more than a few years after the misconduct (if any) occurred. These periods are sometimes as short as one year, and more typically two or three years, and rarely as long as six years.

In the midst of the abuse scandal, however, with the church rocked back on its heels, Connecticut decide to allow a claimant to start a law suit any time within thirty years after the claimant reaches the age of majority (now age eighteen). This measure reopened the capacity of claimants to file lawsuits seeking millions of dollars that had been time-barred for decades. The new measure cost the church in Connecticut-and thus the faithful-tens of millions of dollars to resolve the new round of claims. Many of these newly resurrected claims related to incidents that allegedly occurred more than thirty years earlier and that involved priests who were long dead and thus unable to defend their reputations or to assist their dioceses in resisting financial accountability for the alleged misdeeds.
Arguments about the basic unfairness of such retroactive tampering with established notions of civil justice fell on deaf ears, simply because too many legislators concluded that the voice of the church commanded little attention.

A second, related factor also contributed to the political weakness of the church in defending its moral principles in the legislative arena: political skittishness. Badly bruised by battles over clerical abuse and the legislative reactions to it, some church leaders have been reluctant to return to the fray in any aggressive, coordinated way. They have felt that the hierarchy is cast in the lonely role of Jeremiah, but with the laity not heeding the call, or at least not willing to rally around their bishops in the arena of public policy.

The immediate predicate-or pretext-for the parish-restructuring bill was another scandal, albeit of a slightly (but only slightly) less lurid character. Two parishes in the Bridgeport diocese suffered financial irregularities at the hands of their pastors. In one, the pastor helped himself to over a million dollars to frolic with his lover. With the cooperation of the diocese, the federal authorities prosecuted him and he was sentenced to prison. The ostensible reason for reorganizing Catholic parishes to put all "administrative and financial” matters (among others) under the control of an elected lay board of directors was to prevent similar misappropriation of funds.

Almost fortuitously, the bishops of the three dioceses in Connecticut learned of the bill shortly after its sponsors dropped it in the legislative hopper. Spurred by Bishop William E. Lori of the Diocese of Bridgeport, the bishops began mobilizing. They encouraged constitutional scholars to prepare to testify. They directed their pastors to inform their parishes at Sunday Masses about this legislative initiative. They organized buses to transport concerned Catholics to the State Capitol for the hearing to show their opposition. Bishop Lori even appeared on at least one nationally televised morning talk show to raise the alarm. The issue generated attention across the country and quickly became the hot topic on legal blogs.

The bill suffered from two serious flaws, one practical and one constitutional. On the practical side, it was a "solution” in search of a problem. The bishops already had instituted strict financial controls to minimize the risk of further embezzlements. Moreover, even the presence of a lay finance council had not guaranteed that the dishonest pastor could not siphon off huge amounts of cash. More basically, the Establishment Clause and the Free Exercise Clause require that the state keep its hands off the internal affairs of any church, including ours. That is the authentic meaning of the "separation” of church and state.

There seemed to be some confusion about whether this constitutional policy applies only to matters of abstract religious doctrine or private belief, but has no bearing on the organization and governance of a church. Even a professor of Catholic studies at Fairfield University was quoted as saying that he saw no problem with the bill, because it did not interfere with the bishop's ultimate responsibility for doctrinal matters.

For well over a century, however, the Supreme Court has been crystal clear in insisting that the First Amendment requires that government respect the autonomy of religious congregations to organize and govern themselves according to their own traditions and rules, not those preferred by the state. For example, in one of the leading cases, the Supreme Court considered a state statute, like the one proposed in Connecticut, that “[b]y fiat, . . . displaces one church administrator with another.” Invalidating the statute, the Court declared that the First Amendment protects the power of churches "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952) (emphasis added). Some years later, Justice William J. Brennan, an ardent defender of the separation of church and state, reiterated that the religion clauses of the Constitution "permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 722 (1976) (emphasis added).

Canon law, furthermore, is clear that we are an apostolic, hierarchical church. As successors of the Apostles, bishops are endowed with both the power and the responsibility to administer even the "secular” affairs of the church, which involves raising and allocating money not only to maintain houses of worship but also to promote massive works of charity.

"It is for the diocesan bishop to govern the particular church entrusted to him with legislative, executive, and judicial power according to the norm of law.” Code of Canon Law, tit. 391, § 1

Our Catholic tradition, therefore, illustrates why it is fatuous to draw a line between "doctrinal” matters and "organizational” or "administrative” affairs. The Gospels are a call to action in the world, not just to private devotion in a chapel. As St. Paul said, faith without works is dead. In Connecticut, for example, the largest private provider of social services to the poor and the sick is the Catholic Church. Any effort to drive a wedge between the bishop and his pastors on the one hand and the laity on the other concerning ultimate responsibility for the church's administrative or financial affairs necessarily seeks to transmogrify the church into something alien.

Stunned by the massive campaign of letters, emails, and phone calls, the Democratic co-chairman of the Judiciary Committee who had sponsored the bill announced that they were withdrawing it for further study. Not willing to let them off the hook that easily, the Republican caucus unanimously opposed the bill and scheduled its own informal hearing to let the opponents have their say. Perhaps 5,0000 Catholic faithful, clergy and laity alike, braved a cool March rain to come to Hartford to show their opposition, even though the bill had been pulled.

As it turned out, the ill-conceived bill may have undermined the apparent political dominance of the forces hostile to the church in Connecticut. While no one expects them to fold their tents and silently steal away, the massive coordinated counter-attack demonstrated that church leaders are not helplessly trapped in a legislative free-fire zone.

Perhaps more significant in broader terms, the reaction from the laity to this appeal from the local hierarchy showed a kind of solidarity that has been missing at least since the sex abuse scandal erupted. Observers at the rally reported on the sense of community between pastors and their congregations. In recent years, beleaguered and demoralized pastors have sensed-or worried-that their flocks felt a degree of embarrassment at admitting that they are Catholic.

The spirit of Hartford, however, revealed just how deep and strong is the love of the church among the faithful. No one has any illusions about the human flaws and vices that afflict some churchmen. But these are our problems, and we can deal with them in our own way, the rallying crowd seemed to be saying. For two millennia, we have persevered under leadership from saints and, occasionally, sinners. We do not need the state legislature to intrude into our church's affairs. The founding fathers would have been proud.

Philip Allen Lacovara is a lawyer who served as Deputy Solicitor General of the United States and as Counsel to the Watergate Special Prosecutor. He has taught constitutional law at Georgetown, Columbia, and Hunter College.

Comments

S. Quinn | 6/2/2009 - 3:41pm
There is a major issue missing here. The Dioceses in Connecticut had already put into place - BEFORE Bill 1098 - very, very detailed, transparent, open financial accountability plans, plans that - at least in the case of Bridgeport - are looked at as models elsewhere in the US, and which every parish must abide by. Much if not all of this info is available through the diocese. The financial accountability issue was a smokescreen. The Catholic News Agency interviewed Paul Lakeland of Fairfield University who had this to say: “I’m connected to [the bill] to this degree: I’ve been working pretty closely with Tom Gallagher, who’s a Greenwich businessman, who has been behind the push to get the state government to do something about this. Even though, I don’t think, even he was involved in putting the legislation together.”That last line was very odd, considering that most of the bill reads like a summary of a speech Gallagher gave last year at a local VOTF conference. In a Voice of the Faithful article titled, “The Money Trail: Financial Management and Mismanagement in the Diocese of Bridgeport,” Joseph O’Callaghan quotes Tom Gallagher: “Attorney Tom Gallagher has already initiated discussion with state legislators about changing the law regulating parish and diocesan corporations. Members of VOTF should lend their support to this effort. Asked if there would be implications for the entire U.S. Catholic Church, he confidently responded, 'Oh, I think it would, and I think if passed in Connecticut, the pressure to pass it in many of the other states in the union would be enormous.' " To ignore these facts would be disingenuous. And Lakeland has written a book
Gloria Kalbfleisch | 5/23/2009 - 10:58am
Catholic governance structures are frequently not understood, misunderstood, or applied mysteriously. A model of governance framed in the spirit of post conciliar documents of Vatican II (1962-1965) encourages participation of the laity, recognizes collaboration as a strategy for problem-solving and clearly articulates the processes and procedures of a model grounded in Catholic identity and canon law. The guiding principles for collaboration and consensus building should direct the work of governing councils and boards. It would be prudent to educate those involved in Catholic board governance of their role as advisory and consultative. The role of the Board in relationship to the Bishop of a diocese is understood in application to the authority of the Bishop. The Executive authority can be delegated to an Executive Director; the Judicial authority can be delegated to the Tribunal; the Legislative authority is not to be delegated. This Legislative authority is retained exclusively by the Bishop. Boards and Councils remain advisory and consultative to the Bishop. A suggested reading on this topic is "Models of the Church" 2002, by Avery Cardinal Dulles, S.J.
Leo Fehner | 5/21/2009 - 11:29am
While even one instance of embezzlement is cause for serious concern, the comments of Mr. Cottle regarding the New York Times article were not totally accurate. Mr. Cottle stated that “85% of Catholic parishes surveyed had discovered embezzlement of parish funds” (emphasis added). The Times article stated “A survey by researchers at Villanova University has found that 85 percent of Roman Catholic dioceses that responded had discovered embezzlement of church money in the last five years, with 11 percent reporting that more than $500,000 had been stolen.” (Emphasis added). The article went on to state: “Mr. Zech and his co-author, Robert West, a professor of accounting at Villanova, did not set out to look for embezzlement. They were conducting a study of internal financial controls in Catholic dioceses and sent a battery of questions to chief financial officers in the nation’s 174 Catholic dioceses; 78 responded. Mr. Zech said he was surprised that so many dioceses had detected embezzlement. In 93 percent of those cases, police reports were filed.” As reported in the article, 85% of the 78 responding dioceses discovered embezzlement. However since each diocese may include over a hundred parishes, embezzlement in only one parish in a diocese could be the basis for discovered embezzlement in that diocese. Even if funds were embezzled in several parishes in each of the 78 responding dioceses, that is significantly less than “85% of Catholic parishes surveyed.” Again, while embezzlement of any amount in even one parish is deplorable, it is inaccurate to conclude that 85% of Catholic parishes surveyed had discovered embezzlement of parish funds, based on the Villanova survey.
Paul Cottle | 5/19/2009 - 8:37am
The alarmist message that the Connecticut legislature was attacking religious freedom is a distraction from an important issue to which the legislative leadership was responding - widespread financial irregularities in Catholic parishes. The Janary 5, 2007 New York Times reported on a Villanova University finding that 85% of Catholic parishes surveyed had discovered embezzlement of parish funds in the previous five years, and that in 11% the embezzlement was more than $500,000. The Fairfield County fraud that triggered the filing of the legislative bill was only one instance of a larger problem. While raising the alarm about the perceived threat to religious freedom in Connecticut, the state's church leadership should also have been making a strong and visible effort to address the shortcomings in parish oversight that led to the scandal in Fairfield County. The church's hierarchy must not let the issue of financial improprieties and oversight be swept under the rug. It's made that mistake on a major issue before, with disasterous consequences.
H. Hewitt | 5/19/2009 - 1:20am
"As St. Paul said, faith without works is dead." St. PAUL? Tsk tsk! Would you be so careless in citing a legal matter? (Admittedly, at least it was/ in an Epistle, of which Paul is supposed to have written a plethora, but try St. James.)
Jack Vazquez | 5/18/2009 - 5:12pm
How massive? "5,0000" (sic) is a strange figure in this article...is someone straining for effect?
Peter Chila | 5/16/2009 - 2:00am
The idea of a legislatively created structure that sets the framework for the internal operations of a religious organization is one that might become a reality. My thought is that the politicians are sending "a shot across the bow" of religions that are seen by them as blurring the lines between the separation of the church and state. If President Obama is able to put together a strong, cohesive, and bipartisan bloc of representatives in the house that we may expect attempts to review the tax exempt status of religious organizations.
Livia Fiordelisi | 5/14/2009 - 9:48am
Hello, The article seems to be cut off. I'd like to read the rest if possible. Thanks