Anatomy of a Firestorm

By Thomas B. Scheffey
Connecticut Law Tribune
March 14, 2009

Bill angered Catholics, raised constitutional issues

Greenwich lawyer, inventor and spiritual entrepreneur Tom Gallagher didn’t have much luck over the last two years in his attempts to get the legislative Judiciary Committee to hold a hearing on his idea to give lay committees exclusive responsibility for Catholic parish finances.

Now-retired Rep. Dolly Powers, R-Greenwich, tried without success to have the measure presented for a hearing, as a favor to Gallagher and other reform-minded Catholics in Fairfield County. The bill proponents, including members of a group known as Voice of the Faithful, were upset by a couple of scandals in which priests defrauded their parishes.

But on March 5, in the wake of a contentious hearing about legislation to implement the state Supreme Court’s decision approving same-sex marriage, the Judiciary Committee raised a bill modifying corporate laws for “certain religious corporations” for a hearing March 11, along with dozens of other bills.

Lobbyists, whose job it is to read the bill proposals, alerted the Bridgeport Diocese, which promptly e-mailed Hartford lawyer Michael Shea, who has represented the Catholic and Episcopal churches in religious corporation disputes. Shea is one of the few Connecticut lawyers who have handled court cases arising from the 16-page section of the state statutes which deals with religious corporations. They specifically cover five large and small denominations. The statutes give these and other religious groups the rights and privileges of the corporate form of ownership, including limited liability from lawsuits.

Shea took a look at the proposal, Raised Bill 1098, and quickly concluded it was an unconstitutional affront to the First Amendment’s religious Establishment Clause, and gave his clients his legal opinion.

The proposal allowed any Roman Catholic Church or congregation to incorporate with a board of directors of seven to 13 lay members. “The archbishop or bishop of the diocese or his designee shall serve as an ex-officio member of the board of directors without the right to vote,” it stated.

‘Know Nothings’

Over the next few days, the Catholic faithful of Fairfield County and beyond were alerted by e-mail, telephone and from the pulpits of this sweeping notion, which would strip all financial power from the clergy and place it in elected lay boards.

By early Monday morning, March 9, Sen. Andrew J. McDonald, D-Stamford, had received more than 3,500 e-mail messages from alarmed citizens. During hearings on probate court reforms that morning, he fielded cell phone calls from a folding chair in the hallway. By the next day, McDonald and his co-chair, Rep. Michael P. Lawlor, D-East Haven, not only withdrew the bill, they cancelled the Wednesday hearing.

But a tsunami of protest had already begun to swell, and Republican lawmakers surfed it. They scheduled a day of informational hearings for a spillover crowd at the Legislative Office Building. On the north side of the Capitol, a crowd estimated at 4,200 to 4,700 people listened in a gray drizzle to rousing speeches from Bridgeport’s Bishop William E. Lori and others.

“Remember the Know Nothings?” Lori asked the crowd, referring to the anti-Catholic, anti-immigrant political party that achieved brief prominence in the 1850s. Lori said he thought some had invaded the legislature, and said, to long booing, that McDonald and Lawlor “owe you an apology.”

The Judiciary chairs announced, by press release, that their research indicated that the religious corporation statue that Raised Bill 1098 sought to modify was one of several such statutes on the books in Connecticut. And, the lawmakers suggested, some were of dubious constitutionality. They proposed a review by Attorney General Richard Blumenthal and meetings, outside of the legislative session, for further study.

Inside the Legislative Office Building on March 11, Shea and other legal experts on church and constitutional law addressed the standing-room-only crowd.

Shea explained that Raised Bill “1098 is unconstitutional because it would subvert the Church’s chosen governance structure and thereby violate both the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as similar provisions in our state constitution.”

Shea said Connecticut’s existing religious corporation statutes are constitutional because they defer to the rules imposed by each denomination. He specifically cited the statutes for the Catholic Church, § 33-281, the Episcopal Church, § 33-266 and the Lutheran Church, § 33-278(b), which make the state statute subject to each church’s governance structure.

“I’ve litigated the constitutionality of some of Connecticut’s religious corporation statutes, particularly those dealing with the Episcopal Church,” Shea said in an interview. “But those statutes are, in effect, the same as those governing the Roman Catholic Church in that both statutes say the corporations should be governed by the rules of each of these churches.”

State Constitution

Attorney Wesley W. Horton, of Hartford’s Horton, Shield & Knox, is the author of historical works on Connecticut’s Supreme Court and its Constitution. He said he agreed with Shea about the religious incorporation statutes, at least for three of the denominations.

“The statutes are really kind of unbelievable,” said Horton. They run from C.G.S.33-265a through 33-281a. “It lists a whole flock of churches. The statutes basically defer to what the governance of the church is, but not all of them. There are a couple more -- the Methodist church, and the Augustana Evangelical Lutheran Church -- where the statute doesn’t defer, and is on thinner ice” constitutionally.

Most critics of the bill focused on the First Amendment, Horton noted, but said they have an even stronger case under the Connecticut Constitution. Article VII not only provides for religious freedom in the states, but it specifically focuses on financial control to “support and maintain” the clergy and “build and repair houses for public worship.”

“Unlike the First Amendment, which was an afterthought, there is a whole article in the Connecticut Constitution on this subject, because religious freedom was one of the three reasons for having the 1818 constitutional convention,” Horton said.

Back then, he said, there was a major problem of religious discrimination, and membership in the Congregational Church was legally expected. “The Baptists on the left and the Episcopalians on the right got together with other groups to form the Connecticut Constitution. There are provisions about religious freedom in Article I, but people aren’t aware of Article VII,” which guarantees religious freedom in great detail.

Before then, membership in the Congregational Church was the legal norm, Horton explained. “If you wanted to avoid supporting the Congregational Church, you had to get a letter from your minister, lodged in the town clerk’s office, saying you were up to date on your church dues.”

There was no mention of Jews or any non-Christian religion, Horton added.

At the March 11 hearing at the legislative office building, several lawyers quoted Connecticut’s rules of professional responsibility as possible grounds to file a professional grievance complaint against McDonald or Lawlor, both of whom are attorneys.

Rep. Arthur O’Neil, R-Southbury, calmly explained the broad protection of legislative immunity, and put a damper on that talk. Horton, a legal ethics scholar, agreed. “Grieving Lawlor and McDonald? Oh that’s too much,” he said. “It’s something that a lawyer should not be advancing. Legislators have an absolute privilege. I’m on McDonald’s side on that completely, and as far as I’m concerned, he can be criticized politically, but there is no legal recourse -- nor should there be.”•


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