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JOHN GARVEY

No on church disclosure bill

CATHOLICS in Boston have had a hard time the last few years. The clergy sexual abuse scandal and the parish closings have involved a lot of heartbreak. And a lot of money. The abuse settlement cost $85 million. The parishes scheduled for closing are worth more than that. Some Catholics are unhappy with the church's handling of these matters. Some blame the closings on the abuse settlement. (Not so. It was paid for by sale of the church's Brighton headquarters.) Others contend that the wrong parishes were slated for closing. The archdiocese tried to anticipate these concerns by involving the laity in the initial closing recommendations. And canon law allows people to appeal closings within the church's legal system. Some have already done this.

State Senator Marian Walsh of West Roxbury has proposed a law that would enlist the attorney general on the side of unhappy Catholics. The law would require religious organizations to file detailed financial statements with the Division of Public Charities. The statements would include sources of income, expenses, bank accounts, real estate, compensation paid to employees and professional consultants, and so on.

Churches have never been required to file such statements, though other charities do. Walsh maintains that the law would equalize their treatment. Besides, she argues, her constituents have given donations to their churches, and they are entitled to see that their money is wisely spent.

The attorney general has expressed some skepticism about the proposal. And well he might. The Division of Public Charities (a branch of his office) performs a useful service in supervising charities -- seeing that they meet donors' expectations, and that charity officials are loyal and careful in the management of charitable assets.

But it is not the government's business to take sides in internal church disputes. You can imagine a legal system where it does. British courts supervise the way churches use their members' money. But the Church of England is controlled by the government. Our First Amendment forbids any such arrangement. When we talk about separation of church and state, this is what we mean -- that it is none of the state's business to say how churches are run.

Proponents of the disclosure bill might argue that it doesn't really regulate churches. The attorney general couldn't actually prevent church closings. The bill would only require public disclosure of financial information. It would then be up to a church and its members (with input, of course, from the media) to decide on the best course of action.

But that defense of the bill is too subtle. Walsh wants the government to get involved because some of her constituents are unhappy. They would like the archdiocese to economize in some other way -- by selling rectories or other assets rather than churches or schools. The bill will force the church to make its case in the court of public opinion, and go to the bargaining table with disappointed parishioners.

It is unconvincing to say that this is not regulation. The government often commands disclosure, forces negotiation, and reengineers decision making to change the outcomes that private actors would reach on their own. This is how our securities laws work as well as our labor and environmental laws.

So Walsh's bill is regulation. But, its proponents might say, it's not outright regulation. The First Amendment does prevent the government from treating the church like Enron. But unlike Enron the church gets a tax exemption. Full financial disclosure is the price it must pay for that favorable tax treatment. Or so the bill's supporters might say. But churches are not like other taxpayers. For the rest of us, the tax system is a two-way street: We pay in; the government pays out. Individuals get education grants. Farmers get agricultural subsidies. Small businesses get loans. Airlines and auto manufacturers get bailouts.

The First Amendment forbids the government to support churches in this way, though. This is the other side of the principle of separation. It means that the tax exemption for churches stands on a different footing from other cases of tax relief. The Constitution favors an arrangement that leaves churches financially independent: The government does not support them; it should not inhibit their efforts to support themselves, and it should not get involved in reviewing how they spend their money. That is a matter for churches and their members to resolve among themselves.

John Garvey is the dean of Boston College Law School.

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