Bishop Lee Fails Constitutional Law

In one of the more off-base statements yet made in the course of the Virginia Eleven litigation, DioVA Bishop Peter Lee gave the following in his address to the Diocesan Council this weekend: 

“If the attorney general’s view of the law prevails, it will mean that the Commonwealth of Virginia gives preference to churches with congregational governance, discriminates against churches that are hierarchical or connectional in their governance, and intrudes into the doctrine and discipline of communities of faith.”

Wrong, Bishop Lee, but thanks for playing - here's your nice parting gifts including "TCGC- The Home Game."

Religious liberty in the United States is all about individual liberty - the freedom to not be coerced by designation of a state religion, and the freedom to practice the religion of one's choice.  Period.  Read the First Amendment and that's all you will see.  It has absolutely nothing to do with hierarchical vs. congregational governance whatsoever. 

In fact, if the First Amendment is put in its historical perspective, i.e., the United States throwing off British rule that included the state-supported Church of England, it is even more clear that the entire focus is on preservation of individual liberties as opposed to a coercive system of feudalism and state-supported churches as practiced in England.  Would it thus not also be true that a congregation, made up of individuals exercising their religious rights, should be free to do so without the coercive force of a state or national church body?

I also find it almost humorous, were it not resulting in multi-million dollar litigation, that Bishop Lee can refer to the Virginia Attorney General's position intruding into the "doctrine and discipline" of the Episcopal Church.  As the Rev. Dr. Ephraim Radner recently pointed out, how can a Church hierarchy which does not even comply with its own "doctrine and discipline" morally, ethically, or legally assert "doctrine and discipline" against anyone else?

Bishop Lee seems possessed of a certain level of desperation these days, as reflected in his unprecedented complaint about insufficient giving from parishes in his Diocese.  Instead of demanding more money, should Bishop Lee not be addressing WHY giving is down?  Could it be, hmmm, that people object to the Diocese going $2 million in the hole SO FAR in the Virginia Eleven litigation, with a long way to go?  Could it be that Virginia Episcopalians are not happy that the Diocese knuckled under to PB Schori and instituted litigation in violation of its own policies and protocol and its stand-still agreement with the eleven parishes?  The way the Episcopal hierarchy has thrown its collective weight around without one whit's of interest in what its membership thinks has resulted in a situation where the pew potatoes are voting with the only weapon at their disposal - by withholding giving to the church.

Comments

[Robert Prevost]

I am not commenting on the wisdom of Bishop Lee's statement. However,the suggestion that the First Amendment is about individual liberty is also historically suspect. The text itself says that "Congress shall make no law . . .," leaving state establishments in place and unaffected by the federal constitution. The First Amendment protected establishments; it did not prohibit them. The idea that the constitution protects individual religious liberty is a later, post-14th Amendment, interpretation by the Supreme Court, incorporating the First Amendment.

[Trimble]

Mr. Prevost, thank you for your comment. I disagree somewhat with your interpretation. The First Amendment contains BOTH the "Establishments" clause and the "Free Exercise" clause. While the "Establishments" clause does prohibit Congress from establishing a state religion, the "Free Exercise" clause prohibits Congress from making any law inhibiting the free exercise of religious freedom by any individual. In either respect the overriding ideal was to preserve individual religious liberties. As for the role of the 14th Amendment, the US Supreme Court in Everson v. Board of Education (1947) held that the 14th Amendment made the First Amendment equally applicable to state governments.

[DavidH]

Mr. Trimble, it is clear that not only do you flunk con law, you've never taken the course. I think the Founders would be more than a little surprised to hear you say that an individual has freedom of religion, but groups of individuals have no right to conduct their religious worship as they choose (i.e. hierarchically or congregationally).

Fortunately though, there's no need to speculate about the Founders. Even a quick glance at any of the 100 years of Supreme Court decisions -- the entire gamut from Watson v. Jones to Jones v. Wolf -- reveals that your First Amendment theory is not worth the bits it's printed on.

[Trimble]

Ah, David H., at least you excel in the tired old method of twisting my comments to suit your argument. There is no statement in my post to the effect that groups of individuals do not have the right to structure their church as they choose. My statement is that ++Lee's argument that the Virginia Division Statute is somehow Constitutionally discriminatory is wrong. And by the way, did you happen to read the "Free Exercise" clause of the First Amendment? I doubt any qualified commentator would suggest that does not preserve individual liberties.

[Jeff in CA]

I'm with Mr. Prevost on the original understanding of the religion clauses, and with Mr. Trimble on the incorporation notwithstanding in Everson.

Regardless of the original intent, it's clear that the Establishment Clause and Free Exercise Clause as they have been interpreted are in (severe) tension, and that there is (at least theoretically) a point at which giving the force of law to one individual or group's free exercise becomes an impermissible establishment.

The debate here, it seems to me, comes down to which party is in which position.

I think +Lee's contention is that civil courts shouldn't be interfering in "internal affairs" of religious organizations. This is the driving rationale of the Watson line of church-property cases, and generally protecting religious groups from civil interference is, and has long been, a religious liberty concern.

On the other hand, there is a line of thought, best represented by Jones v. Wolf and its successors, that always deferring to religious authorities in the name of staying out of internal religious affairs, while giving civil enforcement to the actions of that authority, actually tends toward establishing religion as against the rights of subordinate congregations AND/OR individuals, in contravention of THEIR religious liberty.

So that's the mess we're in, I think. And +Lee's Con Law grade depends on whose interpretation you buy.

[Trimble]

Thanks, Jeff in CA, for the very cogent explanation of the tension between the two religion clauses.

[DavidH]

Mr. Trimble, you state that "There is no statement in my post to the effect that groups of individuals do not have the right to structure their church as they choose."

I disagree. You wrote: "Religious liberty in the United States is all about individual liberty... Read the First Amendment and that's all you will see. It has absolutely nothing to do with hierarchical vs.
congregational governance whatsoever."

What does that mean if it is not a statement that "individuals do not
have the right to structure their church as they choose"?

[Trimble]

DavidH, how is it that some people who read statements presume to know more about their meaning than the one who authored them in the first place? You can torture my meaning all you wish, but when read in the context of Bishop Lee's statement, I still contend that he is wrong in claiming that the Virginia Division Statute is constitutionally discriminatory. Certainly the First Amendment includes the right to structure a church any way a group wishes. But I contend it has nothing to do with the claims by DioVA in the Virginia Eleven litigation, at least not in the way DioVA is claiming. I find his statements particularly off-base because of the persistent habit of DioVA and 815 to claim to be hierarchical when it suits their purposes in the property litigation but to act as if they are congregational at other times, such as in their idea of having "local option" for SSB's. As with most things, TCGC and its Bishops want their cake and to eat it, too.