Legal Commentary

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.