COMMENTARY
[We
invite your thoughts. Send to pthorp.ed@votf.org]
Threat
or not to the First Amendment? Attorneys and VOTF leaders
Sharon Harrington (Weymouth, MA) and Bob Morris (Winchester,
MA) offer different perspectives on legislation that
would require the church in Boston to open its books.
First
Amendment: Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
Bob
Morris:
While
I strongly suspect that I'm in the minority with this point
of view, this legislation, while well-intentioned, has
grave constitutional problems. In my view it is not the
business of government to be regulating the relationship
between a church and its donors (i.e., its members) --
whether that church is an obstinate behemoth like the Catholic
Church or a 10-member evangelical church meeting in a small
room above a store front. A church is not just another
charity -- the First Amendment to the U.S. Constitution
makes that clear. And this legislation gets right to the
heart of the relationship between a church's leadership
and its members --VOTF's support of the legislation is
proof positive of that.
I realize
drawing lines here is pretty murky stuff, and that reasonable
arguments on constitutionality can be made by the bill's
proponents. Nonetheless, my sense is that this legislation,
if enacted, will ultimately be declared unconstitutional
under the First Amendment.
From
Sharon Harrington:
The
way I view it, the Catholic Church, as many others, applies
for, and receives, a tax-exemption from the state (and
federal) government. They willingly involve the state in
their affairs to the extent that they qualify for an exemption
for their income and their property (both real and personal).
Additionally, churches willingly involve the state (and
federal) governments regarding tax-exemption so that donors
can claim a tax deduction on their own taxes, which encourages
donations to them. Donors to religious organizations have
special protections in claiming deductions under federal
tax laws.
What
we are asking, by way of this legislation, is that the
religious organizations that benefit from this status provide
information so that we, the donors, can learn whether our
donations are being used or misused (think clergy pension
fund, cemetery maintenance fund, e.g.). The filing is informational.
It does not examine religious doctrine or beliefs.
In opposing
the closing of my parish and others, I have come to believe
(1) that we were not being told the truth and that there
were other assets available to accomplish the RCAB's goals,
(2) that valuable information regarding the church's assets
being withheld/misrepresented at other levels and was perhaps
not reaching the final decision maker and (3) that donations
that we have all given for specific purposes-restricted
under canon and civil law-were being misused.
If we
had better information, which this bill would provide,
we could at least present the information to the decision-makers.
They could still make whatever determination that they
choose. We would be better informed about the use/misuse
of our funds and would be empowered to make better decisions
about donations in the future.
Prof.
Marci A. Hamilton, the Paul R. Verkuil Chair in Public
Law at Benjamin N. Cardozo School of Law, Yeshiva University
(and former law clerk to U.S. Supreme Court Justice Sandra
Day O'Connor) at http://writ.news.findlaw.com/hamilton/ has
provided a number of columns on "FindLaw.com" and a book, "God
vs. The Gavel", in which she argues that First Amendment
protections are not affected by improvements to law (legislative
and decisional by courts) using neutral and generally applicable
principals of law which, e.g. protect children, and do
not influence religious beliefs or embroil the state or
courts in "purely ecclesiastical" matters.
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