Calvin Massey has a new paper on church autonomy (here is the link). Abstract:
When the Supreme Court decided Jones v. Wolf it required courts to use secular criteria to decide church property disputes, yet there remains considerable uncertainty about the permissible latitude of those secular principles. This stems from the Court's attempt to honor three principles that are in tension with one another: 1) autonomous church governance, which the Court sees as an aspect of the free exercise of religion, 2) the need to prevent civil courts from deciding issues of religious doctrine, an aspect of the ban on governmental establishments of religion, and 3) preservation of state autonomy to decide how best to accommodate these twin goals, an aspect of federalism. There are three principal problems with this tripartite objective. First, sometimes they conflict with each other. Second, and worse, When the Supreme Court decided Jones v. Wolf it required courts to use secular criteria to decide church property disputes, yet there remains considerable uncertainty about the permissible latitude of those secular principles. This stems from the Court's attempt to honor three principles that are in tension with one another: 1) autonomous church governance, which the Court sees as an aspect of the free exercise of religion, 2) the need to prevent civil courts from deciding issues of religious doctrine, an aspect of the ban on governmental establishments of religion, and 3) preservation of state autonomy to decide how best to accommodate these twin goals, an aspect of federalism. There are three principal problems with this tripartite objective. First, sometimes they conflict with each other. Second, and worse, this framework fails to take into account adequately the interest of individuals united in local congregations of religious believers freely to exercise their religious beliefs. Finally, embedded in this framework is a generally unrecognized potential violation of the establishment clause: the provision by states of special advantages to hierarchical churches that allow them unilaterally to impose trusts for their benefit upon property held by local congregations.
This article seeks to expose these problems and present an approach that better protects the interest in religious freedom of local congregants while still preserving autonomy of church governance and limiting civil courts to adjudication of secular issues. When hierarchical churches divide into factions the principles of religious freedom embedded in the religion clauses compel civil courts to recognize the religious beliefs of a majority of the local congregation in deciding which faction of the divided church is entitled to the use of the local congregational property, absent some clear and wholly secular indication that the local congregation has given control of its property to the general church. The cost of this approach is a slight reduction in the discretion of states to specify decision rules for church property disputes, and a somewhat more controversial reduction in the degree of deference that civil courts should pay to internal church governance rules when churches divide into factions as a result of religious schism.
When the Supreme Court decided Watson v. Jones in the late nineteenth century and adopted deference to internal church governance as a standard for resolution of church property disputes, the religion clauses did not apply to the states. While the Court couched its reliance upon internal governance as an implication flowing from the ideals of religious freedom, it did not have to examine that premise critically. When in Jones v. Wolf the Court perpetuated this principle as an option for resolution of church property disputes it may have thought that deference to internal governance rules of hierarchical churches promotes religious freedom. Sometimes it does, but not always. Civil judicial interference with a hierarchical church's control of its clergy is the paradigmatic case of impermissible interference with the free exercise of religion. By contrast, permitting a hierarchical church unilaterally to impose trusts in its favor upon property held for the benefit of local congregations either creates an establishment clause violation (if secular charitable entities are denied this state-created benefit or if there is no plausible secular purpose for this benefit) or cuts deeply into the practical reality of how individual believers gathered in local communities manifest their religious conduct. This problem is exacerbated when a hierarchical church divides amid doctrinal disagreement. At that point, courts should apply a rule of local option, permitting each congregation to decide for itself which branch of the divided church will have its fealty and its property. Only by applying such a rule can a proper balance be struck between the splintered autonomy interest of a hierarchical church and the interest in religious associational freedom of local congregations and their individual members. The reflexive reliance of courts upon internal governance rules to decide property issues amid schism has obscured the interests in religious freedom that are at stake.
Adoption of the local congregational option principle leaves hierarchical churches with many avenues to secure congregational property for the benefit of the general church. First, they can avoid rupture by finding sufficient common ground in their religious doctrine to accommodate their body of believers. Second, they can insist that local congregations explicitly place their property in trust for the benefit of the general church as the price of continued affiliation with the general church. What they cannot do is create such trusts by the ipse dixit of the hierarchical church. Finally, embedded in this framework is a generally unrecognized potential violation of the establishment clause: the provision by states of special advantages to hierarchical churches that allow them unilaterally to impose trusts for their benefit upon property held by local congregations.
This article seeks to expose these problems and present an approach that better protects the interest in religious freedom of local congregants while still preserving autonomy of church governance and limiting civil courts to adjudication of secular issues. When hierarchical churches divide into factions the principles of religious freedom embedded in the religion clauses compel civil courts to recognize the religious beliefs of a majority of the local congregation in deciding which faction of the divided church is entitled to the use of the local congregational property, absent some clear and wholly secular indication that the local congregation has given control of its property to the general church. The cost of this approach is a slight reduction in the discretion of states to specify decision rules for church property disputes, and a somewhat more controversial reduction in the degree of deference that civil courts should pay to internal church governance rules when churches divide into factions as a result of religious schism.
When the Supreme Court decided Watson v. Jones in the late nineteenth century and adopted deference to internal church governance as a standard for resolution of church property disputes, the religion clauses did not apply to the states. While the Court couched its reliance upon internal governance as an implication flowing from the ideals of religious freedom, it did not have to examine that premise critically. When in Jones v. Wolf the Court perpetuated this principle as an option for resolution of church property disputes it may have thought that deference to internal governance rules of hierarchical churches promotes religious freedom. Sometimes it does, but not always. Civil judicial interference with a hierarchical church's control of its clergy is the paradigmatic case of impermissible interference with the free exercise of religion. By contrast, permitting a hierarchical church unilaterally to impose trusts in its favor upon property held for the benefit of local congregations either creates an establishment clause violation (if secular charitable entities are denied this state-created benefit or if there is no plausible secular purpose for this benefit) or cuts deeply into the practical reality of how individual believers gathered in local communities manifest their religious conduct. This problem is exacerbated when a hierarchical church divides amid doctrinal disagreement. At that point, courts should apply a rule of local option, permitting each congregation to decide for itself which branch of the divided church will have its fealty and its property. Only by applying such a rule can a proper balance be struck between the splintered autonomy interest of a hierarchical church and the interest in religious associational freedom of local congregations and their individual members. The reflexive reliance of courts upon internal governance rules to decide property issues amid schism has obscured the interests in religious freedom that are at stake.
Adoption of the local congregational option principle leaves hierarchical churches with many avenues to secure congregational property for the benefit of the general church. First, they can avoid rupture by finding sufficient common ground in their religious doctrine to accommodate their body of believers. Second, they can insist that local congregations explicitly place their property in trust for the benefit of the general church as the price of continued affiliation with the general church. What they cannot do is create such trusts by the ipse dixit of the hierarchical church.
I have not yet read the paper (I will!), but -- judging only from the abstract -- Massey's proposal strikes me as misguided, in (what seems to be) its assumption that the Constitution permits (let alone requires) courts to "take into account . . . the interest of individuals united in local congregations of religious believers freely to exercise their religious beliefs" when this "taking into account" involves intruding upon the polity of the churches that these "individuals" have (voluntarily) joined.
At "Front Porch Republic," Lew Daly asks, in this long, but very interesting, post:
So the question I ask myself is this: is there a need and a desire for a family-centered politics that marries security-oriented economic progressivism with community-oriented cultural conservatism? This is “progressive” for focusing on economic structures and power; it is “conservative” for focusing on the problem of family cohesion as a national crisis; it is “cultural” for exposing market liberalism as a danger not only to family economic welfare but to non-market family functions like care for children and elders. Is there a viable politics in cutting across such boundaries?
If there is, in fact, a need and a desire for such a politics, we will need a substantial philosophical reconstruction to create the moral framework that sets it apart from conventional partisan debate, appealing to deeply held values in a consistent if challenging way. I have ideas about how to construct such a philosophy—from elements of Catholic social thought, comparative social law, and maternal feminism. But before turning to those ideas, in a future post, I am eager to hear what others generally think about the project I begin to outline here.
Thoughts?
Monday, June 1, 2009
This post, by Vox Nova's Blackadder, is well worth a read. A bit:
Conservatives who advocate originalism or textualism when in comes to interpreting the Constitution are sometimes accused of advocating a “sola scriptura” view of the Constitution. Since such charges are typically made by Catholics to Catholics, the allegation has a certain sting to it, as if holding a particular theory of constitutional interpretation someone made one a bad Catholic.
Yet there needn’t be anything inconsistent about interpreting the Constitution in one way and the Bible in another. The Bible is the inspired Word of God, given to us for the salvation of souls; the Constitution is a legal document. What’s sauce for the goose ain’t necessarily sauce for the gander in such a context. . . .
An interesting (and, to me, persuasive) suggestion. Thoughts?
This essay is long, but well worth the time. I particularly liked this:
If human beings were simply members of our species, it might sometimes make sense to sacrifice one or another of them for the sake of the species as a whole. But human beings are not just members of the species or parts of a whole. Each human being is a "someone" who belongs to no earthly community to the whole extent of his being. That is why we are not interchangeable. The "value" of one thousand people may be more than that of one, but the thousand are not more than one in personal dignity.
Responding to Michael Sean Winters's review of his recent National Press Club conversation with Doug Kmiec, Prof. George writes:
. . . [Mr. Winters] attribute[s] to me the very reverse of what I hold about whether science can resolve the abortion debate. I believe science cannot resolve it. Modern embryology and developmental biology can show, and have shown, that the human embryo or fetus is a living individual of the species Homo sapiens---a human being in the earliest stages of his or her natural development. And that is important, But I agree with Peter Singer (and just about everybody else who knows anything about the science) that the question of the morality of abortion is not about when the life of a human being begins---the answer to that is clear enough---it is about whether and, if so, when a human being's life has value and dignity---in other words, it is about whether all human beings are persons (i.e., possessors of dignity and a right to life), or whether some human beings (e.g., those at the earliest developmental stages) lack the attribute or attributes of "personhood," and may therefore be killed if they are unwanted or perceived as burdensome. I believe in the fundamental equality of all human beings. I believe that on the basis of philosophical arguments that I have advanced in various writings, including my book Embryo: A Defense of Human Life (with moral philosopher Christopher Tollefsen), and my article "Embryo Ethics" (pdf attached) in the 2008 issue of Daedalus: The Journal of the American Academy of Arts and Sciences. In defending my position, I engage the arguments advanced by Singer, Jeffrey McMahon, Michael Tooley, and others who believe that some human beings are not yet persons (i.e., those in the embryonic, fetal, and early infant stages of development); others are no longer persons (i.e., those in irreversible comas or minimally conscious states and those suffering from severe dementias); and some are not now, have never been, and never will be persons (i.e., the severely mentally retarded or disabled). Sophisticated pro-choice advocates such as Singer, McMahon, and Tooley, do not suppose or claim that the being killed in an abortion is something other than human. (Singer, in a letter published by the New York Times, quite properly reprimanded Mario Cuomo for claiming that the debate about abortion reflects doubts or differences of opinion about whether the fetus killed in an abortion is a human being.) Their claim is that the human being killed in abortion is not a person. There is agreement on the science---the feuts is a human being. The disagreement is philosophical---are human beings in the fetal stage of development "persons"? I hold that every member of the human family, irrespective not only of race, sex, and ethnicity, but also of ages, size, location, stage of development, and condition of dependency, possess inherent and equal dignity; it is precisely this claim that serious and sophisticated pro-choice people deny. As I've said in dozens of places, science can show only that the developing child is a human being. It cannot resolve the question of whether all human beings or, indeed, any human being possesses worth and dignity. Science cannot prove that it is wrong to kill a five month old fetus. By the same token, science cannot show that it is wrong to kill a two-year old child or a healthy fifty-three year old professor. Science cannot tell us whether the death penalty, or genocide, or killing in war is right or wrong. Science can tell us whether a creature is human; it cannot tell us whether deliberately killing humans (be it by abortion or in embryo-destructive research, or in war or as a punishment) is justified or unjustified.
