The Church can not be an instrument of the State. The Conversation Continues

Tim Responds,

Thanks for your note. While I appreciate your discussion, I remain unconvinced by the points you raise. So, I would like to address them in turn.

You write, "The Congress and by virtue of the 14th amendment the States can make no law that requires the Church to do anything that violates its own well established constitution and Code of Cannon Law, including who to hire or fire." This is not the legal meaning of separation of church and state. The establishment clause does not make the church outside the state's juristidiction or immune to the laws it passes through legitimate democratic means. Instead, the establishment clause prevents the state from forming an official religion, from endorsing or denying religious doctrines.

Consider the following scenario. Imagine a morally perverse form of religion deeply rooted in racism, a neo-Nazi church, if you will, came into prominence in this country. Things grow worse as the clergy of this church, in conformity with their well-established canon law, support the murders of people of color by participating in the murders, arming the murders, hiding them from police, and bribing corrupt jurors or other members of the court so as to prevent a meaningful public trial of captured church members. Are you still willing in this case to say that the Congress, and by virtue of the 14 amendment the States, can make no law requiring the church to do anything that violates its own well established constitution and code of canon law? Indeed, the state has both the right and the duty to regulate the actions of religious institutions so as to bring them into conformity with publicly recognizable, liberal standards of justice.

Moreover, you contend, "In as much as the State does not intend in any way to subsume the Church as an organ or instrument of the state what you wrote above cannot be true. If this where [sic] true then the State would have to desist from giving any aid whatsoever to any church organization." This is, I believe, incorrect.

I wrote, "in so far as religious institutions receive state financial support, they become an extension of state policy and action..." I did not claim that the Church, by receiving state financial support, the Church is wholly subsumed by the state and no longer an independent institution of its own.

For example, if I do a favor for you, then I become an extension of your will and your wishes for the purposes of that favor -- that doesn't make me your slave or nothing more than the executor of all of your commands! Similarly, if the church receives state funds or special powers from the state, such as when schools receive subsideies or other state monies, or when the Church arranges the adoption of children, it acts as a proxy for the state. Any proxy of the state, however, is subject to the same legal restrictions and liberal principles as the state itself. Thus, if a religious organization desires public funding or special powers -- public funding or powers which comes from citizenry who may themselves not adhere to the doctrines of that religious institution -- it must conform to the liberal principles which govern public institutions and their proxies.

Yours in Christ,

Timothy

Eques Replies

Dear Timothy,

Thank you for challenging me intellectually. I admire your ability to reason and argue clearly, even when I disagree with you.

You raise excellent points. The problem that I see with the hypothetical racist or Nazi type church is that this in fact has already occurred. The states did not compel southern churches to integrate racially their Congregations. They may have integrated on their own but the state did not attempt to force them to do so. They had no legal way to do so. As late as 1994, I witnessed very clear white and black congregations in Alabama among some Baptists.

Secondly, this may sound like special pleading, which actually it is, the Catholic Church is in fact a unique institution in the history of the West. The very “classical liberal” rights you rely on have their origins in the Roman Catholic Church, the Enlightenment not withstanding. You might want to see How the Catholic Church Built Western Civilization, by Thomas E. Woods, Jr. Ph.D. or What’s So Great about Christianity by Dinesh D’Souza, or We Hold These Truths by John Courtney Murray, S.J.

This unique Church has in fact for two millennium fought for the rights it now claims. Being beyond the reach of governmental interference in the way it governs itself is one of them. Compelling the church to violate its own Cannon Law has been tried through out history. Repeatedly the Church has refused to do so. One example from history concerns Henry II and St Thomas Beckett. Henry wanted Thomas to hand over two priests charged with murder, for trail by the crown; Thomas absolutely refused to do so. The priests would be tried according Cannon Law in church courts. Thomas gave his life defending this principal, as Henry sent four knights to murder Thomas in his own Cathedral. This controversy has been renewed in our day.

In Dallas, in 2002 the American Bishops agreed to become mandatory reporters of their own priests in regards possible criminal behavior. This has the effect of making the Bishops Assistant Attorneys General. The Vatican vigorously objected to the agreement.

“Vatican insisted on major revisions. Vatican officials complain that this contradicts the statute of limitations provided for in canon law, and we concede that it raises enormously difficult questions. The statute of limitations aside, zero tolerance also challenges the church's belief in recovery and redemption.”

”http://query.nytimes.com/gst/fullpage.html?res=9C04E7DE123CF937A15753C1A9649C8B63

The Vatican informed the Bishops that they erred regarding Cannon Law by establishing lay review boards that would sit in judgment of clergy and that the Bishops themselves violate the canonical relation between their priests and themselves by becoming mandatory reporters.

The point being that the Catholic Church qua Catholic Church still maintains the rights long established by Cannon Law, International Law, treaties, and concordats. The Catholic Church among all churches alone has long established rights in law. The USA or any other Country is not free to violate them, as it presently argues in Colorado. For this reason, established law is in fact on the side of the Catholic Church. Archbishop Chaput stands firmly on internationally recognized and established jurisprudence.

The United States is not allowed to violate international law without an argument for other sovereign nations, which is why there has been international objection and controversy concerning the violation of the principal of Habeas Corpus at Guantanamo Bay, not to mention the question of torture. The Holy See is among those sovereign nations who have objected to the violation of human rights and dignity of detainees there.

On an historical basis, no other church can claim the international status or the legitimate sovereignty that The Holy See enjoys, which also makes the question of the hypothetical churches spurious. These would be new phenomenon and enjoy no historical claims. The Catholic Church is exactly what the lawyers for the State of Colorado will argue it is not, an exceptional institution not subject to State or Federal Laws that attempt to interfere with its own Cannon Laws or ecclesial nature, which is unique in the world.

The Church does recognize the states right to regulate those things that do not touch on its law or nature. Let the renovation and expansion of St Catherine of Alexandria church in Westford (St CA), which you witnessed, stand as an example. In the process of construction, the town of Westford attempted to interfere in a number of ways with the project, telling St CA what it could do or not do with the building or property. Our lawyers and I had to remind them that they had no authority over church property. They could not require us to build or not build anything on the property that belonged to the Archbishop of Boston, because of the rights and privileges it enjoyed under cannon and state law. The town of Westford could only expect us to adhere to the laws that pertained to safety and conservation. Needless, to say the planning board did not appreciate the reminder that they had no jurisdiction over Church property.

Another example, the state could require that St CA comply with all the employment laws that pertain to taxes and social security, but it could not govern whom St CA would hire or fire, if the person in question did not represent essential church teachings. Even, Universities have the right to hire or fire professors (whom they have not already granted tenure) based on their particular philosophy, we place this under the rubric of Academic Freedom, a right, which finds its origins in the Catholic Church and the universities it was the first to create.

The essence of my argument is that the Roman Catholic Church is a unique church with a body of laws and a nature well established in jurisprudence and international agreements that predate the United States and its Constitution by nearly 1500 years. "Congress shall make no law … prohibiting the free exercise thereof."

Sincerely Your In Christ

Eques


A friend of Quod Scripist "Behind Enemy Lines" joins the conversation
http://thisoldchurch.blogspot.com/


The framers of our Constitution had no concept of the Separation of Church and State as it is understood today; infact as a side note, it's such a permeating ideology that the majority of Americans think it's some statute or Amendment. However, on the contrary, the Government has no right whatsoever to infringe on the just practice of religion. The First Amendment to the Constitution clearly states that Congress shall make no law which establishes a religion, either from scratch, or as being higher than another, and that the Government shall not make any law abridging the free exercise of any religion.

If this is not enough, any corporation could not and would not hire an employee which shared the values, ideals and goals of the company itself. If an employee were to be hired and then, whether by action or omission of action, to undermine the mission of a corporation and to bring about the failure, humiliation, and destruction thereof, that would be grounds for termination. If this were known before the hire occurred, why would the applicant even be hired? As long as a Corporation does not infringe on the rights of others (please see Tim's argument on murder, evasion, bribery and aiding and abetting known fugitives, which are all against various other laws and statutes of long-established jurisprudence) while protecting it's own viability and interests, this corporation is free to continue to operate as such. As a person does not have the intrinsic right to work in a particular institution (as opposed to a person's rights to life, liberty, speedy trial-by-jury and basic human Justice), and that core-beliefs can be valid reasons for incompatibility in a workplace, the hiring and firing based upon ideologies can not be prohibited.

Now, on the question of the Church becoming an arm of the State...
Simply because a laboratory receives Government funding, does not make it a Government laboratory, simply that the Government acknowledges that it's intended research is worthy. The same could be true of the Church's charities. It is when the Government begins to regulate these Churches and charities, restricting how they can operate that the relationship becomes perverse; this is painfully evident in the forced-closure of the Archdiocese of Boston's Adoption Services when it was mandated to allow non-traditional (read: homosexual) couples to adopt. This went firmly against the history, Teachings and Traditions of the Catholic Church as a faith-system and as a charitable organization. The State does not have the mandate, nor the authority to contravene the just-exercise of Religion wherein the rights and privileges of individuals are not violated.

A married couple nor a homosexual couple has the right to adopt, no more than do they have the right to stand in my living-room uninvited (baring some dire need superseding my right to personal property). The adoption process is to benefit the child more than the adopting couple; this couple having gone through rigorous screening processes to determine whether or not is it a suitable match, based upon the understandings and prejudices of the adoption agency. To enforce particular standard of suitability is socialist at best, tyrannical at worst. Getting married within a Catholic Church, you publicly vow that you will be open to children, and you will bring them up Catholic. Why would you get married in a Catholic Church if you didn't feel that you could uphold this standard of behaviour? By the same token, insofar as the Catholic Church believes that homosexual action is a moral evil, and that homosexual unions are a perversion of traditional family values, why would the Church be forced to perform ceremonies, "marriages" if it were against the grained teaching of the Church? Therefore, why would the Church be forced to condone such "behaviour/lifestyle choice/orientation et al." by granting adoption privileges to such a couple?

Moving on. The Boy Scouts of America is a non-governmental organization which receives Government funding. The mission is wholesome and "American." However, the BSA forbid homosexuals from being in leadership positions, and infact from being even in the ranks of its members. The mission of the BSA is a worthy mission, one which the Government finds appropriate and deserving of financial assistance.
Ought the Government pull funding, or demand "equal rights" for membership applications? But I digress... Eagle Scouts of the BSA are mandated-reporters in the same respect as priests/bishops/doctors/teachers. While this is a noble title, endeavouring to protect the youth, for a religious institution which founds itself on forgiveness and recovery such as the Church, this is a dangerous concept. The requisite reporting of any allegation or even slight issue would render these two essential, core beliefs null, as modern society does not act within "innocent until proven guilty," no it acts more on "guilty even if proven innocent."

There are flaws in our Government. There are flaws in our Church members and leaders. Let's not multiply these flaws by combining them.

Behind Enemy Lines
http://thisoldchurch.blogspot.com/

The Church can not be an instrument of the State

Joseph Kosten of the Acton Institute: for the study of religion and liberty recently has commented on the current legal arguments between the Archdiocese of Denver, Colorado (ADC) in the person of its Archbishop Charles J. Chaput and the State Legislature. The proposed laws the ADC maintains would interfere with vital rights of the Church and require the Church to higher those who disagreed with the teachings and policies of the Church.

You will want to read the commentary of Mr. Kosten before proceeding, after which return to Quod Scrpsit site for some debate of the issue. http://www.acton.org/commentary/427_
religious_liberty_anti_discrimination.php

First Comment:

I will summarize my position by stating that unless I read incorrectly, the proposed legislation does not force you to hire someone but it does prevent you from rejecting someone from employment based on discriminatory grounds. I believe that regardless of belief, or faith religious institutions are led by human beings that have proven to have faulty characteristics.

JOSE

Second Comment:

It looks like Mr. Kosten distorts the proposal of the Colorado House Bill. He writes, correctly, that, "The freedom to hire without government interference is vital to the survival of religious institutions. In order to effectively promote the message of the organization, both the individual and the message must be in harmony." However, the Colorado House Bill will only, as Mr. Kosten acknowledges, "limit the applicability of the exception from compliance with employment nondiscrimination laws... that are funded with government funds" (my emphasis). In so far as religious institutions receive state financial support, they become an extension of state policy and action, and the (classical) liberal principles on which this nation is founded require that instruments of state policy not restrict free speech. Accordingly, if a religious institution desires public funding -- funding which comes from taxpayers who may themselves not adhere to the doctrines of that religious institution -- it must meet the participatory standards of the public at large.


TIM



Eques Responds:

Given your observations, we may conclude that this is the reason that the Archdiocese of Boston has already opted out of the adoption business, thus avoiding state interference in Church polity.The Archdiocese of Boston chose not to argue the point. The ADC has risen to the challenge. Siding with the ADC I do believe that the states interpretation of this ecclesial and governmental relationship is unconstitutional. Strict constructionists might opine that when the Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”; that it means just that. The Congress and by virtue of the 14^th amendment the States can make no law that requires the Church to do anything that violates its own well established constitution and Code of Cannon Law, including who to hire or fire. The Church can never become an instrument of the State.

It seems some folks want a high wall of separation between Church and State permitting the State alone to reach over adjusting the polity of the Church to correspond with its notion of justice. The wall of separation should separate each from each equally. If anything, given the first amendment, the Church has presumptive rights from governmental interference. The State of Colorado et alii presumes it can legislate for the church unless prevented by subsequent court reversals.

“In so far as religious institutions receive state financial support, they become an extension of state policy and action, and the (classical) liberal principles on which this nation is founded require that instruments of state policy not restrict free speech. Accordingly, if a religious institution desires public funding -- funding which comes from taxpayers who may themselves not adhere to the doctrines of that religious institution -- it must meet the participatory standards of the public at large.”

I disagree with the above statement. If this is true than the Church becomes an instrument of the State and the wall of separation is most definitely breached. In as much as the State does not intend in any way to subsume the Church as an organ or instrument of the state what you wrote above cannot to be true. If this where true then the State would have to desists from giving any aide whatsoever to any church organization. It would be a “prima face” violation of the Constitution. What the state is claiming is the authority to dictate policy to church organizations because they receive state aide. This violates Cannon Law.

The Church cannot be by its ecclesiological nature “an instrument of state policy.” The Church has fought this battle many times through the centuries under the heading of “lay investiture,” in which kings, emperors, and princes of all kinds attempted to control church policy by claiming the right to appoint bishops and approve lower clergy. This battle is still being fought in the Peoples Republic of China, and other totalitarian regimes.

Today it seems that several states are attempting to do the same by placing conditions on monies given for social services, this would make the church an instrument of state policy. This would violate Cannon Law and the Church would have to forgo many of its social services, which would then fall back on the states, something the states do not want. I believe that Archbishop Chaput will win this legal battle, historical precedent being on the side of the Church. Otherwise, the relationship and cooperation between the Church and the State will be seriously altered. the first stress fractures have already appeared in Boston over the “adoption rights” issue.

Eques