Can federal courts probe how Catholic priests speak during Mass to the faithful about the pope’s use of an ancient religious offering given in his name?
That’s the question in O’Connell v. U.S. Conference of Catholic Bishops, in a pending petition for rehearing en banc before the D.C. Circuit. The case concerns a Catholic parishioner (O’Connell) who filed a class action lawsuit against the Conference of Catholic Bishops, alleging that a Sunday Mass defrauded him as to the use of donations to the pope’s thousand-year-old annual charitable fundraising effort called Peter’s Pence, which solicits money for the pope’s charitable priorities. O’Connell seeks to have a civil court and jury parse religious sermons and internal church communications and documents to prove his case, because O’Connell knows better than the pope what counts as charitable and how that money should be spent.
The bishops respond by arguing that the First Amendment’s religion clauses bar members of the Catholic faithful from suing over their pope’s undisputedly permissible use of the offering. The bishops say that courts must fully resolve that defense now, at the threshold stage of the case. Otherwise, allowing such entangling cases to proceed to merits discovery and trial, where dissenters can use coercive judicial power against their church, would itself become a form of leverage in religious disputes. That’s particularly obvious here, as the burden of intrusive litigation would cost the church far more than whatever O’Connell tossed into the offering plate.
A panel of the D.C. Circuit disagreed. It held that religion-clause defenses can wait until after trial for resolution and therefore sent O’Connell’s case to the merits. Four sets of amici, including 24 states, joined the bishops in asking the en banc Court to reconsider. The Court called for a response, which suggests that it is taking that request seriously.
It should. At bottom, and as reflected in his recently filed response, O’Connell’s argument is that the First Amendment’s protection for church autonomy isn’t important enough to merit threshold resolution.
That can’t be right. The ability to tweet during trial, for example, and to keep personal medical information private have recently been found sufficiently important to receive threshold resolution by the D.C. Circuit. A fundamental First Amendment right that runs to the roots of church-state relations in our country, which embodies interests that explain why we even exist as a country, and which D.C. Circuit Judge Justin R. Walker once described as “one of the American experiment’s most audacious guarantees,” surely isn’t less important.
More to the point, it’s an important right that protects against the process of litigation itself. Nor does that right have as recent a vintage as trial-tweeting. For decades, the Supreme Court and six other circuits have repeatedly held that “the very process of inquiry” can “impinge upon rights guaranteed by the Religion Clauses.” Indeed, every D.C. Circuit case in the past 30 years has repeated and relied on that rule. Yet the panel never once even mentions the rule in coming to the opposite conclusion.
That’s also how the panel treats the recent opinions of ten judges who disagreed with its conclusions: Judges Bacharach, Brennan, Cabranes, Eid, Livingston, Menashi, Nardini, Park, Sullivan, and Tymkovich. And those ten judges are right.
The very process of inquiry into core religious matters crosses church-state lines, causing irreparable injury to First Amendment rights that, as Judge Rao has explained, can’t be “undone through a later appeal.”
Justice Clarence Thomas’s recent deep dive into the historical roots of church autonomy in his Catholic Charities Bureau concurrence helps explain why. The religion clauses’ protections are aimed at ensuring autonomy — that is, a right to ecclesial independence, free from state intrusion, on certain narrow but deep matters of a church’s own internal governance. Since the Founding, then, courts and other government actors have understood that even entertaining questions in such areas necessarily impinges the church’s autonomy.
It’s no surprise, then, that O’Connell is studiously uninterested in the original meaning of the religion clauses. Which is why, like the panel, he simply ignores a scholars amicus brief headlined by Michael McConnell and Douglas Laycock, whom Justices Thomas, Samuel Alito, and Neil Gorsuch identified as “some of the country’s most distinguished scholars of the Religion Clauses.” The professors have been cited by justices of the Supreme Court — often in the opinions of the Court — in virtually every modern case touching on the meaning of the religion clauses. Catholic Charities Bureau, Kennedy, Fulton, Our Lady of Guadalupe, Shurtleff, Espinoza, American Legion, Masterpiece Cakeshop, Hosanna-Tabor, Town of Greece, Elk Grove, Kiryas Joel, Lamb’s Chapel, Church of the Lukumi, and even Amos cite the scholarship of McConnell or Laycock (or both) on the meaning of the religion clauses. So do many of the D.C. Circuit’s leading religion-clause opinions, such as Duquesne University of the Holy Spirit and Catholic University of America. You’d think the D.C. Circuit’s first case about Catholics suing over how the pope uses religious offerings would at least consider what these scholars have to say.
Nor is it any answer that the scope of the religion clauses is irrelevant because (as both the panel and O’Connell assert) the canon is simply closed on types of rights worth the effort of threshold resolution. The tweeting- and medical-privacy-related cases alone show that’s wrong. And it’s hard to square in any event with the Supreme Court’s recent cert grant of an opinion denying threshold resolution to a derivative-sovereign-immunity defense — where the unsuccessful brief in opposition likewise emphasized a perceived canon closure.
And this is a particularly unusual abuse of church autonomy. While there appears to be a growing wave of religious-offering-refund cases, until now, federal district courts have repeatedly rejected the claims quickly, before reaching full merits discovery. And the en banc Ninth Circuit just affirmed one of those rulings unanimously. Five members of the eleven-member panel went further, emphasizing that it was obvious and inescapable that allowing such a “patently inappropriate” claim to go any further than the threshold of the case would violate the religion clauses. But the panel ignored them too in allowing the case to proceed and make the D.C. Circuit an outlier.
Judge Park, writing for five judges of the Second Circuit, warned that an approach like the panel’s would “eviscerate” church autonomy. He was right. If the D.C. Circuit doesn’t correct its error, the Supreme Court may have to.