WASHINGTON (March 27, 1998) -- In Congressional testimony, the General Counsel of the United States Catholic Conference, Mark E. Chopko, urged "vigorous federal protection" for religious rights.
The absence of strong protection for church bodies under clergy communication statutes since the U.S. Supreme Court struck down the Religious Freedom Restoration Act (RFRA) in 1997 has had a negative impact on the Catholic Church and other religious bodies throughout the country, he said.
The USCC official testified (March 26) before the Subcommittee on the Constitution of the House Judiciary Committee. His testimony supported proposed legislative solutions to problems exacerbated by the demise of RFRA.
Mr. Chopko said the search for appropriate and constitutional legislative protection for religious freedom is a matter of priority for the Catholic Bishops of the United States, who, along with many others, worked actively for the enactment of RFRA.
"Indeed, we feel a special responsibility because the case that led to the invalidation of RFRA was raised in the context of a dispute between one of our parishes and a city government in Texas concerning the right of that Catholic parish to worship as a community in space devoted and consecrated for that purpose," he stated.
In the case, City of Boerne v. Flores, the city government prevented a Catholic parish in the Archdiocese of San Antonio from expanding its facilities to accomodate more worshipers. Mr. Chopko cited similar instances in which church buildings are designated as historical landmarks over the objections of church leaders, which, in turn, restricts the ability of church communities to expand or contract to suit the needs and demands of worshipers.
"Although much has been said about the litigation potential of RFRA, the real power of the Religious Freedom Restoration Act, I believe, lay in its use in negotiation and persuasion in numerous local and administrative disputes across the country," Mr. Chopko said. "RFRA gave religious people and their organizations the right to insist that accomodation, not conformity, be the norm," he stated.
In his testimony, Mr. Chopko reviewed recent situations in which the religious freedom of individual Catholics or Catholic organizations has been compromised by the actions of government. He cited the 1996 Oregon case in which prison officials secretly recorded a sacramental confession made by a prisoner. The Archdiocese of Portland took the case to court and the Ninth Circuit eventually found that the interception of the confession was an impairment of the rights of the priest who heard the confession and of the local archbishop.
"Absent a religious freedom law, it is debatable whether we would have had adequate protection for the rights of the confessor and the Church to resist and seek restitution for this breach of confidentiality," Mr. Chopko stated. "Clearly, the finding by the Ninth Circuit that the Religious Freedom Restoration Act had been violated, in addition to the Fourth Amendment, was instrumental in the resolution of the case. Absent the Religious Freedom Restoration Act, it is not clear how the Court would have ruled on the Free Exercise claim, as the Court did not decide the case on that basis."
In addition to personal communications, church written records, prepared in private as part of an internal church process, need to be protected, according to Mr. Chopko. In the current legal context, warned the USCC official, trial courts around the country may override religious rules securing the confidentiality of these communications in favor of generally applicable discovery principles.
"I do not believe that churches are immune from tort liability or contractual liability when they engage in wrongdoing, nor am I advocating a broad and sweeping rule of secrecy in litigation," Mr. Chopko said. "Rather, I am acknowledging that forced disclosure of private communications that are an integral part of the discipline of a church will undermine and impair, for example, a church's administration of its penal law or a church's internal governance."
Mr. Chopko said the potential for infringement of church rights in the matter of property has been shown in a series of cases in the State of Colorado. Officials in Arapahoe County have placed numerical limits on the number of students that may be enrolled in religious schools and on the size of congregations of various churches as a way of limiting their growth. In Douglas County, administrative officials initially proposed limiting the operational hours of a church as they do with commercial facilities. Similar limitations placed on the Camp St. Malo retreat center owned by the Archdiocese of Denver, where Pope John Paul II spent time during his 1993 visit to the United States, may force its closure.
The USCC official also expressed concern about the absence of protection for objections to governmental requirements based on religious conscience. He cited instances in which church employers have been told they must provide employees with an array of medical services, including abortion, which the Catholic religious community condemns as intrinsically evil.
"Our inability to obtain adequate conscience clause protection in certain parts of the country makes the rights of religious communities more precarious," Mr. Chopko said. "The presence of a strong statute protecting religious freedom would offer a useful way in which we could resist this additional demand that our religious communities conform to the secular norm."