Legal Commentary

The Judiciary Committee of the Connecticut General Assembly is now considering a bill to re-organize the governance of the Roman Catholic Church. I do not mean simply that the Assembly is considering an ostensibly secular bill that has some subtle and insidious purpose to target the Roman Catholic Church and is, therefore, unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. The Assembly placed the purpose of the bill right in the title: It is "An Act Modifying Corporate Laws Relating to Certain Religious Corporations," and it provides that "[a] corporation" that is "organized in connection with any Roman Catholic Church or congregation in this state ... shall have a board of directors consisting of not less than seven nor more than thirteen lay members" elected by the congregation, which board shall exercise the "general administrative and financial powers of the corporation."

I do not mean to bring this legislative oddity to anyone's attention on the ground that it raises any interesting constitutional issues. Facial discrimination against a specific sect -- not even against religion in general -- fails even the narrowest theories of free exercise of religion currently on offer. (Section 1(h) of the bill makes a pious gesture of avoiding free exercise problems by declaring that "[n]othing 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").

The only interesting question suggested by Bill 1098 is why the CT legislature would propose a bill that would serve only to provide some lucky lawyer with some section 1988 "prevailing party" fees during a lean period for the bar. What, in short, is the political function served by an obviously unconstitutional bill? I see three conceivable explanations: (a) The CT Assembly's leadership is actually innocent of any familiarity with simple constitutional doctrine -- even the sort of doctrine that is so basic that it normally percolates into popular culture -- and therefore thinks that this bill is a serious legislative proposal; (b) The CT Assembly's leadership wants to placate some interest group with an empty gesture by proposing a bill that it knows will go nowhere but Injunctionville after it leaves the state house; or (c) The bill was introduced with the secret support of the Catholic hierarchy as a way of exciting sympathy for Catholics by a show of anti-Catholic demagoguery. Both (a) nor (b) tend to re-enforce Fred Schauer's jaundiced view of legislatures' interest in honoring constitutional norms, while (c) seems too kookily conspiratorial for a state legislature.

Perhaps there is some fourth explanation that I am missing? Do any readers know the real story behind the Judiciary Committee's constitutional tomfoolery?