The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his “first allegiance was to the will of God” and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently “attached to the principles of the Constitution.”  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you’re liable to walk right by this unimposing gem of a watercolor. 

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Catholic Bishop Warns of Interdict in Parish Dispute

You don’t see this everyday. Bishop Robert Morlino of the Catholic Diocese of Madison, Wisconsin has warned parishioners that they may be subject to the penalty of interdict if they continue protesting the behavior of two parish priests. An interdict is a rare canonical punishment that would exclude the parishioners from sacraments like marriage and communion.

The priests, from a Spanish order, have been serving at a parish in Platteville, a farming community. They are, in Catholic terms, “traditionalist.” According to the Wall Street Journal, they have, among other things,  banned female altar servers, forbidden shorts and other casual clothing at Mass, and stressed “doctrinal orthodoxy in their sermons.” These activities did not go over well with more liberal parishioners, hundreds of whom signed a petition to Bishop Morlino demanding the priests’ removal. The parishioners complained that the priests were acting inconsistently with Church teaching, particularly the reforms of Vatican II.

In a letter to the parish, Bishop Morlino admitted that some of the priests’ actions had been hurtful; he encouraged parishioners to forgive the priests and the priests to be more sensitive in future. But there was no evidence that the priests had contravened Church doctrine, including the teachings of Vatican II, he wrote. In the end, the complaints reflected mere “personal likes and dislikes, along with inflated rumors and gossip, some of which may even rise to the level of calumnious inciting of hatred of your priests, the faith, and myself.” These complaints could not be the basis for “firing” the priests — indeed, under canon law, a parish has no authority to “fire” its pastors.

Canon law does, however, give a bishop authority to discipline refractory parishioners, and Bishop Morlino suggested he might do so if the complaints don’t stop. He attached to his letter a list of relevant texts on which he asked parishioners “to reflect prayerfully.” Among these were canons providing for “penal sanctions, ” including Canon 1373, which provides that a person who “publicly incites . . . animosities or hatred against the Apostolic See or an ordinary [e.g., a bishop] because of some act of power or ecclesiastical ministry or provokes subjects to disobey them is to be punished by an interdict or other just penalties.” The parishioners would still be Catholics; an interdict would not change that. Of course, some parishioners may decide to leave the Church on their own. As it is, donations since the priests began serving the parish have dried up, so much so that the parish school has had to close.

No Establishment Clause Violation in RI Sports Field Allocation Dispute

The United States District Court for the District of Rhode Island has ruled that the City of Pawtucket’s football and soccer field permitting policies do not violate the Establishment Clause (readers may remember that the City of Pawtucket was the defendant in an important Establishment Clause case several years ago, Lynch v. Donnelly).

Plaintiffs, a collection of parents of public school students in Pawtucket, alleged that the City was “preferentially allocating permits for the use of publicly owned and maintained athletic fields to private religious schools.”  Because both the public and parochial schools within the City generally do not have athletic fields on their own respective grounds, they have had to share the City’s public fields.  The District Court’s excruciatingly detailed factual findings about the history of field allocation across the years indicate that for a long period, that arrangement seemed acceptable.  But an athletic director for one of the public schools became disgruntled about scheduling difficulties, and decided that displeasure as to the allocation of practice field permits warranted an Establishment Clause claim. 

Applying the Lemon and endorsement tests, the Court rejected the claim.  The City granted preference to public schools over the parochial schools in the scheduling of games, and public schools were advantaged in some ways, but not in others.  “The Court need not complicate a simple analysis: the City’s permitting policies implement the clearly secular purpose of allocating limited game and practice field space to all junior high and high school students within the City.” 

As to effect, the plaintiffs’ claim was that because the only private schools which benefited from the policy were Catholic, that in itself violated the Establishment Clause.  That argument was, quite properly, rejected by the court, which noted that

The Supreme Court has consistently rejected the premise that conduct which in some manner aids an institution with a religious affiliation violates the Establishment Clause. See Mueller, 463 U.S. at 393. It is “well-established” that a state may reimburse parents for expenses associated with transporting their children to and from school and that a state may loan secular textbooks to all schoolchildren within the state. Id. Some benefit flowing from the government to religion is permissible, as “not every [practice] that confers an indirect, remote or incidental benefit upon [religion] is, for that reason alone, constitutionally invalid.”  Lynch, 465 U.S. at 683.

The case is Rogers v. Mulholland, 2012 WL 1565091 (D.R.I. May 4, 2012).