Archbishop O'Malley pledges "openness"

"O'Malley pledges financial openness," the Boston Globe reports:

O'Malley said that he will release audited financial reports early next year with ''full disclosure" of the archdiocese's revenues and expenditures, as well as an explanation of the cost and source of all clergy sex abuse settlement payments. He also promises to release an accounting next fall of the finances -- including assets and liabilities -- of each of the archdiocese's parishes, which currently number 295. O'Malley said the disclosures would then be made annually.

But Sen. Marian Walsh is not impressed:

"A voluntary policy can be changed by anyone, this year or next year or anytime," said Walsh, a West Roxbury Democrat. ''We want to make sure the taxpayers and donors are protected in statute."

Sen. Walsh has proposed a bill, by the way, that would impose new disclosure and reporting requirements on churches, and authorize intrusive review and supervision by government officials of financial and other decisions by churches.  Boston College's John Garvey does a good job, here, of explaining that that the bill is a striking assault on the freedom of the Church, and on any meaningful understanding of religious freedom (the link also includes the legislative testimony about the bill by the Executive Director of the Massachusetts Catholic Conference):

[I]t is not the government's business to take sides in internal church disputes. You can imagine a legal system where it does. British courts supervise the way churches use their members' money. But the Church of England is controlled by the government. Our First Amendment forbids any such arrangement. When we talk about separation of church and state, this is what we mean -- that it is none of the state's business to say how churches are run.

Proponents of the disclosure bill might argue that it doesn't really regulate churches. The attorney general couldn't actually prevent church closings. The bill would only require public disclosure of financial information. It would then be up to a church and its members (with input, of course, from the media) to decide on the best course of action.

But that defense of the bill is too subtle. Walsh wants the government to get involved because some of her constituents are unhappy. They would like the archdiocese to economize in some other way -- by selling rectories or other assets rather than churches or schools. The bill will force the church to make its case in the court of public opinion, and go to the bargaining table with disappointed parishioners.

It is unconvincing to say that this is not regulation. The government often commands disclosure, forces negotiation, and reengineers decision making to change the outcomes that private actors would reach on their own. This is how our securities laws work as well as our labor and environmental laws.

So Walsh's bill is regulation. But, its proponents might say, it's not outright regulation. The First Amendment does prevent the government from treating the church like Enron. But unlike Enron the church gets a tax exemption. Full financial disclosure is the price it must pay for that favorable tax treatment. Or so the bill's supporters might say. But churches are not like other taxpayers. For the rest of us, the tax system is a two-way street: We pay in; the government pays out. Individuals get education grants. Farmers get agricultural subsidies. Small businesses get loans. Airlines and auto manufacturers get bailouts.

The First Amendment forbids the government to support churches in this way, though. This is the other side of the principle of separation. It means that the tax exemption for churches stands on a different footing from other cases of tax relief. The Constitution favors an arrangement that leaves churches financially independent: The government does not support them; it should not inhibit their efforts to support themselves, and it should not get involved in reviewing how they spend their money. That is a matter for churches and their members to resolve among themselves.

Stay tuned.