In a stunning bit of realpolitik, two openly homosexual Connecticut state politicians* have introduced legislation seeking to punish the Catholic Church in Connecticut for daring to exercise its First Amendment rights and advocate for traditional marriage.  The proposed law, Raised Bill 1098, identifies its target (the Roman Catholic Church) by name and would mandate the radical reorganization of the Church so as to remove pastors and bishops from control of their parishes and dioceses.

You can find a brief yet thorough and persuasive analysis of the unconstitutionality of the proposed law below the break in an open letter from Philip A. Lacovara, Senior Counsel, Mayer Brown LLP, to members of the Connecticut Judiciary Committee.  But perhaps more troubling than the jurisprudential weakness of the bill is the willingness of the polticians sponsoring it to use the legislative power of the State against a political enemy.

Understand that same-sex marriage in Connecticut is a creature of judicial fiat, not enacted law.  In 2007 two gay politicians, state Senator Andrew McDonald, Democrat of Stamford, and state Representative Michael Lawlor, Democrat of East Haven, raised House Bill 7395, which would have authorized same sex marriage.  While the bill successfully made it out of the Judiciary Committee, it was tabled by the legislature and never acted upon.   The Catholic Church in Connecticut actively opposed H.B. 7395, as you can see here and here, much to McDonald’s and Lawlor’s chagrin.

The gay marriage subject in Connecticut is now moot, as last October the Connecticut Supreme Court issued its decision in Kerrigan vs. Commissioner of Public Health, holding by a 4 to 3 margin that Connecticut’s prohibition against same-sex marriage violated the state constitution.  Not satisfied, however, with a substantive “victory” on the gay marriage issue, McDonald and Lawlor are now seeking to punish the Church for having had the temerity to voice its opinion during that debate.  Thus their introduction of their latest bit of legislative malfeasance, discussed below.

This is an appropriate time (and SA is the perfect forum) to remember these words from James Madison’s speech in the Virginia State Convention of 1829-’30:

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.”

Amen.

*McDonald and Lawlor were identified as being openly gay in the editorial titled “County Fair:  The Queering of Connecticut” from the Fairfield County Weekly, an “alternative” news publication published here in Connecticut.

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

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 as such.  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, 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’.”

The quotation is from Justice Brennan’s opinion for the Court in SERBIAN ORTHODOX 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 enact legislation 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