The Bill of Rights as Recommendations/Suggestions.
In 2002 the Catholic Bishops of the United States appointed a National Review Board to evaluate the “causes and context” of the sexual abuse crisis in the Catholic Church. The Board was composed of twelve lay people and included two judges and several lawyers including a law school dean and a civil rights attorney.
In its subsequent Report, the National Review Board agreed that “state authorities imposed significant state controls on the internal workings of the church” (61) and agreed that such controls represented “a troubling infringement of the First Amendment’s guarantee of the free exercise of religion.” (63) However, the Board members not only accepted those violations of the Bill of Rights but actually justified them.
In the view of the Board the First Amendment is a discretionary restraint on government. The Board members advised civil authorities “to take pains to ensure that they do not unnecessarily intrude upon the internal workings of the church, which are protected by the First Amendment’s guarantee of the free exercise of religion.” (63) The members justified the violation of the First Amendment and the Bill of Rights because “it was the serious failings of some bishops that caused this exercise of state authority over church matters.” (63) The members warned the bishops that they must “understand that a failure to properly police themselves simply invites this type of government intrusion.” (63)
Would one say that it is unfortunate that the police beat the prisoner, but he “invited” the beating by his failure to cooperate with their investigation!
If the First Amendment is merely a recommendation to government, are the other protections of the Bill of Rights also recommendations? Are they to be understood by authorities as guidelines that government will not “unnecessarily intrude upon”?
If we are to accept that the First Amendment is merely a recommendation to government, then should not the same hold true for the Eighth Amendment’s prohibition against “cruel and unusual punishments?” Is this prohibition against torture just a recommendation, one the government should not engage in “unnecessarily?” Could government interrogators justify themselves on the grounds that suspected terrorists “invited” torture?
The Supreme Court has pointed to James Madison’s famous defense of the free exercise of religion in his 1985 Memorial and Remonstrance as a guide to the meaning of the First Amendment. In that petition Madison wrote:
We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.
He also described the free exercise of religion as an unalienable right.
The First Amendment is not a recommendation to government; it is an absolute prohibition against the exercise of government jurisdiction in matters of religion.
Most great crises in American history have brought grievous violations of civil and religious rights, and the sexual abuse crisis is no exception. Just when people most need the protections of the Constitution is the time when they are oftentimes not available.
The targeting of the Church (particularly in California), the overreaching of district attorneys and prosecutors, and the lack of due process and fairness for the Church has been tyrannical.
All of us, including bishops, are subject to the law. However, accusations never justify the trampling of civil and religious liberties by government.
It is “troubling” that prominent Catholics, including distinguished members of the legal profession, would be so ignorant of the meaning of one of the most fundamental of American liberties–the free exercise of religion.