Centre Article: When the State Over-Reaches and Seeks to Govern Religions

March 13, 2009

Connecticut's Proposed Bill No. 1098 on Misappropriation of Funds within certain Religious Corporations

The General Assembly of the State of Connecticut recently placed before its Judiciary Committee a Bill containing a proposed Act entitled: An Act Modifying Corporate Laws Relating to Certain Religious Corporations.

Though it is not particularly long, this piece of proposed legislation is hugely significant. The Proposed Act may be viewed here. Its purposes are listed this way:

Statement of Purpose:

To revise the corporate governance provisions applicable to the Roman Catholic Church and provide for the investigation of the misappropriation of funds by religious corporations.

The actual provisions make the Bishop an ex officio non-voting Member of the Board (one of seven to 13 members) then sets out the following:

(e) The general administrative and financial powers of the corporation shall be exercised by or under the authority of the board of directors. Such powers shall include, but are not limited to:

(1) Establishing and approving budgets;

(2) Managing the financial affairs of the corporation;

(3) Providing for the auditing of the financial records of the corporation;

(4) Developing and implementing strategic plans and capital projects;

(5) Developing outreach programs and other services to be provided to the community; and

(6) Any of the powers enumerated in section 33-1036.

(f) The pastor of the congregation shall report to the board of directors with respect to administrative and financial matters.

(g) Any member of the corporation is entitled to inspect and copy, during regular business hours at the corporation's principal office, any of the business records of the corporation, including accounting records and financial statements if such member gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy.

(h) Nothing in this section shall be construed to limit, restrict or derogate from any power, right, authority, duty or responsibility of the bishop or pastor in matters pertaining exclusively to religious tenets and practices.

Two things are particularly note-worthy here. First, strategic plans and "outreach programs" are now to be determined by a Board of lay persons. Second, the authors of the Bill seems to suggest that direction of "strategic plans" and "outreach programs" can be hived off from "exclusively religious tenets and practices" (see sub-section [h] above), thereby attempting to blunt concerns about interference with religion.

The problem with this move is that "strategic plans" and "outreach programs" are themselves "religious". By interfering with the direction of such programs and plans the Bill, while suggesting that a bright line exists between "exclusively religious tenets and practices" and "outreach", effectively drives a wedge into the understanding of dogma and religion that Catholics believe underlie their beliefs, as those work out in the surrounding society.

In addition, the term "exclusively concerned with religion" which supposedly respects this narrowed down version of religious activity, is a gap wide enough to drive a secularist truck through. As we have seen in the Christian Horizons case (currently before the Ontario Divisional Court on review), and commented upon already (see: Centrenews Article No. 158), the Ontario Human Rights Commission has been arguing that the phrase "primarily engaged in serving the interests of a [religious] group..." has been read to mean "only engaged in so doing." It doesn't take much insight to realize that "exclusively" is likely to be interpreted very narrowly to apply only to religious beliefs themselves and not to their application in the world—a bifurcation that fits this Bill but not the facts, as I've argued, about Catholic beliefs influencing all aspects of life in the world.

Any issue, if squinted at enough from a secularistic direction, can be viewed as "political" or "health related" or what have you and not "religious" where religion has been pre-emptively narrowed, as it has in the proposed Connecticut Bill.

The attempt to drive a line between "religious" and "non-religious" activity in the world, like the idea of dividing the world into two neat realms—the one "secular" and the other "religious" fails to take into account that from the religious perspective, it is the religious beliefs of the organization that drive its understanding of what is and is not "strategic" and what decisions have to be made in relation to "outreach programs." Within the Catholic understanding, the office of the Bishop is that of a "deciding mind" on such issues and no State legislation should interfere or attempt to interfere with this ancient religious office and its understood role within the religion. There simply is no bright line of the sort the legislation appears to base its distinctions upon.

Such an understanding of the autonomy of a religious association, however, places them, for many purposes, outside the purview of the law. That is as it must be. For those, however, and we have written about many of them in Centre publications over the years, who seek to usher the State further and further into the internal affairs of religions (whether synagogue, mosque or church) it is a necessary step to apply a certain view of "Charter values" everywhere in society irrespective of an equally important right to dissent or believe other things.

The attempt to make judicial review an omni-competent authority over matters of religious belief that are uncoupled from religion by clever interpretation is not new, and is happening more frequently . Connecticut's law on "financial impropriety" would be used to gain wholesale access and control over religious bodies by increasing the scope of "strategic" and "outreach" and decreasing what is considered ‘exclusively religious." This would transfer control of diocesan matters to lay people and weaken the office of the Bishop.

This is not to say that in all circumstances the nature of religious projects or the specific job function of an employee are irrelevant. Sometimes valid distinctions between religious and non-religious job functions in certain types of religious projects and at all times the rules of natural justice (in terms of fair employment proceedings) should apply to religious and non-religious bodies.

It follows from this recognition that in some circumstances (acting through labour laws or human rights laws) the State may be entitled to decide that a particular position on the facts of a case, say that of a janitor or gardener, is sufficiently removed from the dogmatic aspects of a religious organization that different rules might apply in relation to employment (where there is a generalized "religious code of conduct" for example). It has been argued that a teacher passing on the religious beliefs in a direct way in a denominational school setting may have a more strict test for adherence to the faith than the janitor or gardener who does not have such a key religious role. Yet even here the specific context is very important and settings differ as to their "religiosity."

The Connecticut Bill, on the other hand, is a wholesale interference and does, as its opponents have suggested, raise the spectre of State control of religions. This must not be allowed to occur: those committed to the freedom of associations in society must recognize the threat that legislation such as this poses to a free and democratic society.

While the apparent rationale for the Bill was to deal with "the misappropriation of funds" there are other means whereby the use of funds can be checked and scrutinized.

The Bill, apparently, elicited such a storm of controversy that it has recently been withdrawn. However, the fact that it could have been introduced in the first place is itself sufficient warning that the principles it sets in play, and some of which have been touched upon in this article, need to be much better and widely understood and good arguments against them applied.