Thoreau built a tiny house on the shores of Walden Pond to experience first-hand the application of his Transcendentalist principles. The Oneida Society maintained a community in New York in order to achieve their own vision of communal perfection. But is there any doubt that building inspectors today would red-tag Thoreau’s simple structure, or that law enforcement would investigate the peculiar marriage and sexual practices of the Oneida group?
Such legal challenges face Domino Pizza founder Thomas Monaghan’s plan to build a community founded on Catholic principles. The Town of Ave Maria, some 25 miles east of Naples in southwestern Florida, is being developed around a university of the same name and will eventually be home to 20,000 residents. On February 17, Jeb Bush joined Monaghan and others in a groundbreaking ceremony for the project (let’s not read much into the fact that it had been delayed since last year by Hurricane Wilma), self-described as a “town based on traditional family values.” The town will also be home to the Oratory of Ave Maria, which will have the largest seating capacity of any Catholic church in the U.S., and will also include what is said to be its largest crucifix–60 feet high.
But the major controversy surrounding Monaghan’s plan is its embracing of traditional values–specifically, orthodox Catholic values–as Ave Maria’s raison d’être. X-rated magazines will not be carried in its stores; condoms and other forms of birth control will not be sold in its pharmacies. Cable providers won’t carry porn in their channel line-up. The dormitories at the university will be single-gender, and a substantial portion of its classes will be taught by orthodox priests.
Monaghan isn’t sugarcoating it; he told Newsweek: “I believe all of history is just one big battle between good and evil. I don’t want to be on the sidelines.”
This focus makes Ave Maria a lightning rod for many who do not share Monaghan’s beliefs. The president of the so-called “Catholics For a Free Choice” compared the plan to Islamic fundamentalism. And of course the local ACLU chapter is getting in on the act, predicting “a whole series of legal and constitutional problems.” (Even the Sierra Club claims that the project will destroy Florida panther habitat.) Such claims have legal precedent: Parochial schools have been sued for firing abortion activists; pharmacists have been sued for not providing contraception to customers; cities have been sued for having religious elements in their mottoes or seals.
Whether Ave Maria’s rules would survive legal scrutiny is an open question. Prohibiting the prescribing or sale of contraception will be attacked as violating privacy rights. The perception of a “Catholic” town would likely lead to claims of discrimination in areas such as housing and employment. And the First Amendment is regularly used to defend adult entertainment and publications. Other questions will undoubtedly arise: What will happen when an openly gay couple attempts to purchase a home in Ave Maria? Will the town ban pro-abortion protests? Will there be a public school, and, if so, what would the curriculum look like? If not, how will the town accommodate parents that do not wish to send their children to the planned parochial school?
There do exist some exceptions to these laws for religious institutions; for example, a church is free to hire only members of its own denomination to serve as ministers, cantors or deacons. A religious broadcaster is certainly free to purge its shows of any content it deems immoral. But there has never been an example of an entire town being the “religious institution.” While the Catholic principle of subsidiarity may be more easily reconciled with a town’s implementation of Church social teaching than the same action being taken by a state or the nation, the law makes no such distinction.
But opponents of the plan will find themselves on shaky legal ground. A key 1946 Supreme Court decision cited by Ave Maria’s detractors held that Chickasaw, Alabama–a privately owned company town–could not ban Jehovah’s Witnesses from distributing religious literature in its streets. Although there are certain similarities with Ave Maria, Chickasaw was created by a corporation not to accommodate traditional values and religious beliefs, but rather to make money. The high court noted that “the town of Chickasaw does not function differently from any other town,” and therefore must be held to the same constitutional standards. It appears that Ave Maria, in contrast, certainly does intend to function differently.
Public pressure may cause the town’s organizers to rethink their proposal. The controversy has led Monaghan more recently to contradict the impression that Ave Maria “is to be a Catholic town,” and to state that he had previously “misspoke” regarding the widely reported planned restrictions.
But certainly the initial concept of Ave Maria, if implemented, would scale back on what the modern American understands to be the personal freedoms he is entitled to: privacy rights, free speech, free press, no establishment of religion. And perhaps few of us would hope that the nation itself would be run this way. But where nobody will step within the borders of Ave Maria other than by his own free choice–and where objectors are free to avoid participating simply by hopping on a bus–won’t it be regrettable if there isn’t room in America, even in some remote tomato field, for this experiment?
Roman P. Storzer is an attorney specializing in First Amendment law in Washington, D.C.
Source: AFF Doublethink Online | Andrew Stiles
Source: AFF Doublethink Online | Kathlyn Ehl