Wednesday, March 11, 2009

A Report on Religious Liberty From the Belly of the Whale

I attended the Republican inspired informal hearing on Raised Bill 1098 on Thursday, called hastily after McDonald and Lawlor killed the hearing on THEIR bill.

Only a three days notice was allowed before the MacDonald/Lawlor hearing, and the bill was verbally disguised. Only later did legislators discover what was in the bill. By that time roof tiles were raining down on the heads of the judiciary committee members. It’s pretty clear they had hoped to reduce controversy at their hearing. The bill itself, invidiously targeted at Catholics, assumes there is no connection between finances and the mandate of the Catholic Church. Everyone agrees that the bill is unconstitutional.

In follow-up reports, Lawlor and McDonald imputed the content of the bill to some parishioners at St. John’s in Darien. That lie was barely out of their mouths when it began to fall apart. The news reports in the Journal Inquirer showing some parishioners repudiating the bill were splendid.

Who knows what the Courant was doing. But their commentators have been carrying water for McDonald and Lawlor all along anyway.

Having miserably failed to humiliate and weaken the Catholic Church, Lawlor and McDonald now are proposing, in concert with Attorney General Dick Blumenthal, to revisit older laws that enhance the liberties of all the churches in Connecticut.

Someone should throw an Aristotelian brick at these two. The essence of justice lies in treating equally things that are equal and in treating in an unequal manner things that are unequal. The body of laws in Connecticut enabling religious liberty should remain untouched. The laws Blumenthal wishes to review for their constitutionality are of this nature; they were passed by legislators who embraced religious liberty and wished to see it prosper. That is why some of the laws are different than others – because the churches to which they pertain are different. Those laws enhance religious liberty and they are just. The proposals of Lawlor and McDonald are inherently unjust – because they reduce the liberty of Catholics and are unconstitutional in their design.

Any law that enhances First Amendment religious rights -- the laws presently on the books -- cannot by definition be unconstitutional. The exemption in taxes is a case in point. That law must apply to all religious institutions or it cannot be constitutional. But religions are inherently different, and so laws that affect religious practices to be constitutional must be carefully crafted so that such laws do not impair the practice, which must in any case be legal. A law respecting the right of conscientious objection for Quakers for instance would be constitutional because it enhances an article of faith central to that faith. This is what Aristotle meant when he said that the essence of justice is to treat different things differently. There is nothing unconstitutional with the body of law in Connecticut that protects religious liberty. The thing is not broke – because those laws are an organic response by past legislators who wanted churches to be free and carefully designed the laws with it in mind to enhance the liberty afforded by the First Amendment to different churches in Connecticut.

There was a Boston professor there who spoke very eloquently to this point -- and it is one that Edmund Burke, among others, would have been anxious to defend.

I don’t want the attorney general to re-invent this wheel. It will be just another way to make my church less free.

The test in all these cases is the same: If the law enhances the liberty of the church, it is constitutional, because the First Amendment itself is designed with this end in view. The apostolic structure of the Catholic Church, central to its mission, is different than the corporatist structure of many protestant churches. The law that treats these differences in a similar manner is an ass.

Nothing is over. Even the offensive bill for which McDonald has offered an ingenious apology has not been killed. It may be resurrected by McDonals, Lawlor or someone else as an amendment slipped through a sleeping legislature.

Some at the informa hearing thought Lawlor and McDonald should be impeached. If it were possible, one commentator suggested, their licenses to practice law should be yanked. This is unlikely because the two are legislators and as such enjoy immunity against such punishments.

However, if they were impeached first, they then could be brought upo on a complaint before the Connecticut bar.
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