Amicus Brief — Sun Myung Moon v. United States

FILED

MAR 7 1984

No. 83-1242

_ : ect L. STEVAS.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

SUN MyuNG MOON and TAKERU KAMIYAMA,

Petitioners

Vv.

UNITED STATES OF AMERICA,

Respondent

On Petition for Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF AMICUS CURIAE

FOR THE COALITION FOR RELIGIOUS FREEDOM

AND CHRISTIAN VOICE, INC.

IN SUPPORT OF PETITION FOR CERTIORARI

J. CURTIS HERGE *

ROBERT R. SPARKS, JR.

Puiirp H. BANE

SepaM & Hexce, P.C.

Suite 1100

8300 Greensboro Drive

McLean, Virginia 22102

(708) 821-1000

*Counsel of Record for

Amici Curiae

Coaiitien for Religious Freedom

Christian Voice, Inc.

Witson - Eras Priwrine Co.. inc. - 789-0096 - WasHincTon. D.C. 20001

TABLE OF CONTENTS

Page

po Bae ig y ) | yy | RO ena ii

STATEMENT OF THE INTEREST OF AMICI .......... 1

STATEMENT OF THE CASE ..................20-<esceccceoreeeeeees 2

SUMMARY OF ARGUMENT ...........000.000000.0000000... etaadl 2-4

ARGUMENT

I. By Refusing to Apply Settled “(Neutral Princi-

ples” of Law to Resolve a Question of Church

Property Ownership, the Second Circuit Rejected

the Uniform Holdings of This Court and Vio-

lated the First Amendment’s Religion Clause _... 4-9

II. By Adopting, Ad Hoc and Contrary to Settled

Principles, a New and Questionable Theory of

Ownership Which Permitted Court and Jury to

Weigh and Adjudicate the Content, Validity and

Truth of Bona Fide Religious Doctrine, the De

cision Violated the First Amendment’s Religion

Clauses and the Fifth Amendment’s Due Process

Guaranty x ee ap cole ee

CONCLUSION Latounens eenbeeiaasanan 19-20

(i)

ii

TABLE OF AUTHORITIES

Cases

Archbishop v. Shipman, 79 Cal. 288, 21 P. 830

rere en a iaaiiemeneies

Brittingham v. Commissioner, 57 T.C. 91 (1971)..

Cantwell v. Connecticut, 310 U.S. 296 (19389) .........

In re Durbow’s Estate, 245 N.Y. 469, 157 N.E.

Ne daskideieanbinnsaniins

Everson v. Board of Education, 330 U.S. 1 (1947)..

Fink v. Umschied, 40 Kan. 271, 19 P. 623 (1888)..

In re Fitzgerald’s Estate, 62 Cal. App. 744, 217

AN RRA OA ESR ree dE eo

Gibbons Estate, 40 P.A. D&C. 2d 84 (1966) .............

Gospel Tab. Body of Christ Church v. Peace Publ.

& Co., 211 Kan. 420, 506 P.2d 1135 (1973), ad-

hered to, 211 Kan. 927, 508 P.2d 849 ( eee

Herbert v. Commissioner, 377 F.2d 65 (9th Cir.

Tee sd aledcncaglnabihind

Heritage Village Church v. State, 299 N.C. 399, 268

S.E.2d 726 (1980) ..... LO ipso CRE Me eo REE RNC SOE

Holy Spirit Association v. Tax Commissioner, 55

N.Y.2d 512, 435 N.E.2d 662, 450 N.Y.S.2d 292

AE ESSERE SERS Rs ae se Ce cease

Jones v. Habersham, 107 U.S. 174 (1882) 00000000...

Jones v. Wolf, 443 U.S. 595 (1979) -.....000.00-0

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94

(AS ater RT A na RR Oe RED ee

Korn v. Rabbinical Council, —— Cal. App. 3d ——,

BE Ge, TERR, DID CID cseteseccnstctecccesscccsicscecens.

Larson v. Valente, 456 U.S. 228 (1982) 0...

Lemon v. Kurtzman, 403 U.S. 602, 620 (1971) ....

Manley v. Fiske, 189 A.D. 665, 124 N.Y.S. 149

(1910), aff'd, 201 N.Y. 546, 95 N.E. 113 (1911).

Manniz v. Purcell, 46 Ohio St. 102, 19 N.E. 572

ER oe ee aE re Mee

Maryland and Virginia Churches v. Sharpsburg

Church, 396 U.S. 367 (1970) ........

Mee v. Gordon, 187 N.Y. 400, 80 N.E. 353 (1907)...

Morey v. Riddell, 205 F.Supp. 918 (S.D. Cal. 1962) . 1-9, 11

Mt. Healthy City Bd. of Ed. v. — 429 US.

274 (1977) .. in dendin sani

. 18-19

iii

TABLE OF AUTHORITIES—Continued

Page

Murdock v. Pennsylvania, 319 U.S. 105 (1943).... 16

New York City Mission Society v. Board of Pen-

sions, 261 A.D. 823, 24 N.Y.S.2d 395 (1941) .... 6

In re Estate of Nurse, 35 N.Y.2d 381, 362 N.Y.S.2d

441, 321 N.E.2d 587 (1974) 6

O’ Dwyer v. Commissioner, 266 F.2d 575 (4th Cir. ),

cert. denied, 361 U.S. 862 (1959) ....... 7

In re Pattberg’s Will, 282 A.D. 770, 123 N.Y.S.2d

564 (1953), aff'd, 306 N.Y. 835, 118 N.E.2d 903

(1954) ..... as oe ae es 9

Pierce Estates Ine. v. Commissioner, 3 T.C. 875

SR a da CES Or ae 9

Presbyterian Church v. ” Hull Church, 393 U. s.

440 (1969) .. 3, 5

In re Price's Will, 264 A.D. 29, 35 NYS 2d 111,

aff'd, 289 N.Y. 751, 46 N.E.2d 354 (1942) ......... 6,9

Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927) ... 8

St. Peters Roman Catholic Parish v. Urban Re-

development Authority, 394 Pa. 194, 146 A.2d

724 (1959), cert. denied, and appeal dismissed,

359 U.S. 435 ( ) &

Sears v. Parker, 193 Mass. 551, 79 N. E. 772

(1907) fe ae 6, 8

Sherbert v. Verner, 374 U. S. 398 (1963) . 4 14,17

Serbian Orthodoz Diocese v. Milivojevich, 426 U. s.

i A SS EN Ae 16, 18

7-Up Co. v. Commissioner, 14 T.C. 255 (1970) ... 7

Speiser v. Randall, 358 U.S. 24 (1965) 18

Stratton v. Commissioner, 54 T.C. 255 (1970)......... 7

Terrett v. Taylor, 18 U.S. 43 (1815) x

Town of Hardenburgh v. State. 52 N.Y.2d 536, 421

N.E.2d 795, 796 (1981) 7

United States v. Ballard, 332 U.S. 78 (1944) 15, 20

United States v. Scott, 600 F.2d 1145 (7th Cir.

1981), cert. denied, 455 U.S. 907 (1982) iy

United States v. Seeger, 380 U.S. 168 (1965) 15

Watson v. Junes, 80 U.S. 679 (1871) 8,4

Welch v. United States, 398 U.S. 388 (1970) 15

Williams v. Williams, 2165 N.C. 789 (1989) ........... 7

EE EEES:SCC“ OE

iv

TABLE OF AUTHORITIES—Continued

Page

Winn v. Commissione r, 595 F.2d 1060 (5th Cir

1979) 7, 8,9, 11

CONSTITUTIONAL PROVISIONS

U.S. Const, Amend. | passim

U.S. Const. Amend. V passim

STATUTORY PROVISIONS

N.Y. Est. Powers & Trust Law (McKinney 1967) 6

N.Y. Relig. Corp. (Consol. ) 7

Rev. Proc. 68-19, 1968.1 C.B. 810 7

Rev. Rul. 74-23, 1974-1 C.B. 17 7

OTHER

Kauper and Ellis, Religious Corporations and the

Law, 71 Mich. L.R. 1499 (1973) 8

50 N.Y. Jur. Religious Societies $11] A

A.W. Scott, The Law on Trusts (3d ed. 1967) 6, 7,89

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-1242

SUN MYUNG MOON and TAKERU KAMIYAMA,

Petitioners

Vv.

UNITED STATES OF AMERICA,

Respondent

On Petition for Certiorari to the United States

Court of Appeals for the Second Circuit

¢

BRIEF AMICUS CURIAE

FOR THE COALITION FOR RELIGIOUS FREEDOM

AND CHRISTIAN VOICE, INC.

IN SUPPORT OF PETITION FOR CERTIORARI

STATEMENT OF INTEREST OF AMICI

Amicus Coalition for Religious Freedom is an associa-

tion of ministers, rabbis and priests, whose aim is to

emphasize the need to protect the nation’s churches, and

the constitutional right to speak, assemble and worship

free from government interference.

The founders and active members of the Coalition for

Religious Freedom are Reverend Jerry Falwell, of the

Thomas Road Baptist Church; Dr. D. James Kennedy,

of the Coral Ridge Presbyterian Church; Dr. Edward V.

Hill, of the Missionary Baptist Church; Dr. James T.

Draper, of the First Baptist Church, Eulers, Texas;

Reverend Jimmy Swaggert, of the Jimmy Swaggert Min-

2

istries; Dr. William R. Bright, Chancellor of the Inter-

national Christian Graduate University; Dr. Joshua O.

Haberman, of the Washington Hebrew Congregation;

Bishop Thomu. J. Welsh, of Allentown, Pennsylvania;

and, Dr. Charles Stanley, of Atlanta, Georgia. The

Coalition and its founders have an active interest in the

implications of this case: the intrusion of government

into the freedom of religion; and, they support a full

venting of the issues raised by Petitioner.

Amicus Christian Voice, Inc. is a nonprofit, tax-exempt

corporation, organized and existing under the laws of

California. It represents over forty-five (45) denomina-

tions of the Christian faith and has 350,000 members, of

whom 40,000 are ministers. Christian Voice, Inc. is com-

mitted to advancing fundamental Christian morality and

the preservation of religious freedom in the promulga-

tion of federal and state legislation. The members of

Christian Voice, Inc. have a deep interest in the issues

presented by Petitioner and it thus desires to voice the

concerns of its members on these issues.

Accordingly, Amici respectfully submit their brief in

support of the Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit.

STATEMENT OF THE CASE

Amici adopt by reference the Statement of the Case as

set forth in the petition for certiorari, insofar as the

facts are relevant to the arguments set forth below.

SUMMARY OF ARGUMENT

This case turned on a question of church property

ownership: were the aasets in question beneficially owned

by the International Unification Church Movement' or

' References to the “Church,” “Unification Church,” “Movement,”

“International Movement,” and the like, generally, are intended to

refer to the International Unification Church Movement, founded

by that Church’s leader. This question should have been

controlled by the well articulated law of the cases dealing

with such questions.

In an unbroken line of decisions, this Court has held

that when civil courts are called upon to resolve questions

of property ownership involving churches, they must

either defer to the definitive determinations of appropri-

ate internal church bodies on the subject, Watson v.

Jones, 80 U.S. 679 (1871), Presbyterian Church v. Hull

Church, 393 U.S. 440 (1969), or resolve the issue by

applying “neutral principles” of law in a manner so as

to insure its resolution in accord with the desire of the

members. Jones v. Wolf, 443 U.S. 595, 608-04 (1979).

The decision below, however, contravened constitutional

and case teaching and rejected both these approaches. It

disregarded the desire and intention of the members and

refused to apply the “neutral principles” approach man-

dated as an alternative.

Instead the court adopted a new and highly debatable

theory of ownership and consequent tax liability. Having

placed the greatest determinative weight or (i) the uses

of the funds, (ii) the fact that Unification Church

members sometimes refer to the funds as “Father's”

and (iii) that the International Movement was not in-

corporated, the Court obstructed and frustrated defense

efforts to show that these factors actually evidenced and

comported with Church, rather than individual, owner-

ship. The court rejected clearly relevant evidence of

Unification belief and doctrine which the defense offered

to show were church-related and that the nomenclature

adopted was also indicative of Church ownership.

The court permitted an unconstitutional inquest by the

jury into questions of Church belief, doctrine, teaching,

and led by Reverend Moon and the religion which it embodied.

Where reference to specific Unification Church branches, organiza-

tions or affiliated entities is intended, this will be indicated.

4

mission and ministry, with no guidance or limitation

whatever, allowing the jury to find such doctrine true or

false, religious or nonreligious as it wished and on what-

ever basis, or to reject it altogether. On the other hand,

the court allowed the prosecution to use this religious

context where it became convenient as an aid to convic-

tion. In so doing, it denied due process and transgressed

Religion Clauses protection.

ARGUMENT

I. By Refusing to Apply Settled “Neutral Principles” of

Law to Resolve a Question of Church Property Owner-

ship, the Second Circuit Rejected the Uniform Holdings

of this Court and Violated the First Amendment's

Religion Clauses.

As noted, the central question was one of property own-

ership: were the assets beneficially owned by the Church

or by its leader? Usually these questions come before the

courts when a dispute arises within a church, as to where

ownership lies.

Here, however, there was complete unity within the

Church on the issue; the only disputant was a stranger

to the congregation; namely, the government. This does

not, however, alter the plain fact that the core of the case

was a classic dispute over the ownership of church

property.

To resolve such disputes, this court has laid down clear

and unmistakable ground rules. In a seminal holding,

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871), this

language is found:

In this class of cases we think the rule of action

which should govern the civil courts .. . is, that,

whenever the questions of discipline or of faith, or

eccelesiastical rule, custom or law have been decided

5

by the highest of these Church judicatories to which

the matter has been carried, the legal tribunals must

accept such decisions as final, and as binding on

them, in their application of the case before them.

Id, at 727. (Emphasis added. }

See also, Presbyterian Church v. Hull Church, 393 US.

440, 665 (1969). (Civil courts resolving such contro-

versies inhibit the free development of religious doctrine. )

In other words, if it can be clearly determined, without

internal dispute, that competent Church authorities or

bodies have decided the question at issue, then that deter-

mination must be deferred to and accepted. To do other-

wise would be to permit the courts to probe into and

adjudicate matters of religious practice and doctrine,

something prohibited by the First Amendment. The

courts are not even permitted to inquire into the question

of which authority within a church has the power to

decide, for to permit the courts to judge such matters

would violate the First Amendment in the same manner

as civil determination of religious doctrine. Maryland

and Virginia Churches v. Sharpsburg Church, 396 U.S.

367 (1970). See also, Kedroff v. St. Nicholas Cathedral,

344 U.S. 94, 121 (1952) (when property right follows, as

incident from decisions of church custom or law on eccle-

siastical issues, church rule controls}. Accord, Jones v.

Wolf, 443 U.S. 595, 602 (1979).

In those situations where authoritative internal church

determination may not be evident or ascertainabie, resort

may be had by civil courts to “neutral principles” of law,

so long as these are applied in a manner best calculated

to “ensure that a dispute over the ownership of church

property will be resolved in accord with the desire of the

members.” Jones v. Wolf, 443 U.S. at 603-04.

There was no dispute within the Unification Church, and

it was clear, looking to manifest Church desire and teach-

6

ing, where beneficial ownership lay. The uncontradicted

evidence on the point showed that the assets came from

fund raising efforts carried out by Church members on be-

half of the Church, that they were entrusted to the Church’s

leader as a charitable gift with the intention that they be

used for the benefit of the Church. “Neutral principles”

of law, well settled, would require a holding that this

established the existence of a trust, or at the very least,

a fiduciary holding of these assets by Reverend Moon for

the benefit of the Church, a result clearly consonant with

the intentions and wishes of the Church and its members.

This is pointed out and documented exhaustively by

Judge Oakes in his dissenting opinion, 718 F.2d at

1242-43.

For centuries the law has favored charitable and re-

ligious trusts and has bent over backward in order to

resolve ambiguities in favor of upholding them. See 4A

A.W. Scott, The Law on Trusts, §§ 371.3 at 2885, 351 at

2797-98 (3rd ed. 1967) [hereinafter cited as Scott]; In

re Price’s Will, 264 A.D. 29, 35 N.Y.S.2d 111, 114-15,

aff'd, 289 N.Y. 751, 46 N.E.2d 354 (1942); In re Estate

of Nurse, 35 N.Y.2d 381, 389, 362 N.Y.S.2d 441, 446,

321 N.E.2d 537 (1974); N.Y. Est. Powers & Trust Law

§ 8-1.1 (McKinney 1967).

In numerous cases trusts have been found where there

was no formal language and even where the gift was abso-

lute in form, this being frequently inferred merely from

the fact that the property came from a church source and

was transferred to a church leader. In re Durbrow’s

Estate, 245 N.Y. 469, 477, 157 N.E. 747, 749 (1927);

New York City Mission Society v. Board of Pensions,

261 A.D. 823, 24 N.Y.S.2d 395, 396 (1941); Sears v.

Parker, 193 Mass. 551, 79 N.E. 772 (1907); Jones ».

Habersham, 107 U.S. 174, 182 (1882); Scott, supra;

Fink v. Umscheid, 40 Kan. 271, 19 P. 623 (1888);

Archbishop v. Shipman, 79 Cal. 288, 21 P. 830 (1889).

7

Indeed, many cases have found implied trusts simply

from the lone fact that the donee or legatee held a re-

ligious office or an office in a charitable institution, despite

language or circumstances indicative of absolute gift. See

Scott, § 371.3 at 2885 and cases there cited; Jd. at § 351

at 2797-98. See also In re Fitzgerald’s Estate, 62 Cal.

App. 744, 217 P. 773 (1923) ; Gibbons Estate, 40 P.A. D.

& C.2d 84, 86-87 (1966) ; Williams v. Williams, 215 N.C.

739, 743 (1939). This view is also reflected in several

statutory enactments. See, e.g., N.Y. Relig. Corp. § 91

(Consol.), which provides:

The archbishop or bishop and the vicar-general of the

Diocese to which any incorporated Roman Catholic

Church belongs, the rector of such church, and their

successors in office, shall, by virtue of their offices,

be trustees of such church. . . . (Emphasis added) .?

This line of holdings is entirely consistent with what

appears to have been settled Internal Revenue Service

(hereinafter “IRS”) policy in this same regard, at least

until the decision in this case. See, e.g., Winn v. Com-

missioner, 595 F.2d 1060 (5th Cir. 1979); Morey v.

Riddell, 205 F.Supp. 918 (S.D. Cal. 1962); Brittingham

v. Commissioner, 57 T.C. 91 (1971). The situation is by

no means confined to religious situations but applies

equally to those involving political campaigns or other

causes. C.F. O’Dwyer v. Commissioner, 266 F.2d 575,

585-586 (4th Cir.), cert. denied, 361 U.S. 8621 (1959) ;

7-Up Co. v. Commissioner, 14 T.C. 965 (1950); Stratton

v. Commissioner, 54 T.C. 255, 282 (1970). See, e.g., Rev.

Rul. 74-23, 1974-1 CB 17; Rev. Proc. 68-19, 1968-1 CB

810, 811.

Indeed, the holding of church property in the personal

name of a church leader has long been an accepted method

2 Town of Hardenburgh v. State, 52 N.Y.2d 536, 421 N.E.2d 795,

796 (1981). “Real property held in trust by a clergyman .. . for

the benefit of the members of his incorporated or unincorporated

church shal! be entitled to the same exemption from taxation ... .”

Quoting from § 436 N.Y. Property Tax Law.

8

of church property tenure. See, e.g., Kauper and Ellis,

“Religious Corporations and the Law,” 71 Mich. L.R.

1499, 1506-09 (1973). Under the common law, title to

real property of the parish in the Angelican church was

taken in the name of the minister, and title to personalty

in the name of the church wardens.* Terrett v. Taylor,

13 U.S. 43, 46-47 (1815). There are many cases hold-

ing that where church officials held title to property in

their personal names, they did so as trustees for their

Churches. See, e.g., Sears v. Parker, 193 Mass. 551, 79

N.E. 772 (1907); Jones v. Habersham, 107 U.S. 174,

182 (1882), Fink v. Umscheid, 40 Kan. 271, 19 P.623

(1888); Morey v. Riddell, 205 F.Supp. 918 (S.D. Cal.

1962); Winn v. Commissioner, 595 F.2d 1060 (5th Cir.

1979) ; Scott $§ 351, 371.3 at 2797-98, 2885.

Furthermore, this result would obtain regardless of the

actual use to which the custodian might put the funds,

since use or application inconsistent with trust purposes,

under settled, “neutral principles” establishes, at most,

a diversion (not charged in this case). It does not, by

any previous holding, operate to convert the entire trust

corpus into the custodian’s personal property. 718 F.2d

at 1246; (Oakes, J., dissenting) ; United States v. Scott,

660 F.2d 1145, 1151 (7th Cir. 1981), cert. denied, 445

U.S. 907 (1982) ; Herbert v. Commissioner, 377 F.2d 65,

70 (9th Cir. 1967).

’The holding of diocesan property in the personal name of

Catholic prelates, whether as a corporation sole or otherwise, is

equally well known. See, e.g., Reid v. Barry, 93 Fla. 849, 112 So. 846

(1927); Mannix v. Purcell, 46 Ohio St. 102, 19 N.E. 572 (1888);

St. Peters Roman Catholic Parish v. Urban Redevelopment Au-

thority, 394 Pa. 194, 146 A.2d 724 (1959), cert. denied and appeal

dismissed, 359 U.S. 435 (1959) ; Gospel Tab. Body of Christ Church

v. Peace Publ. & Co., 211 Kan. 420, 506 P.2d 1135 (1973), adhered

to, 211 Kan. 927, 508 P.2d 849; Scott, § 371.3 at 2884-85; 50 N.Y.

Jur. Religious Societies § 111 at 11.

9

The Second Circuit majority, however, declined to fol-

low the overwhelming weight of the foregoing authorities.

Far from deferring to the manifest internal determina-

tion of the Church, as evidenced by the members’ wishes

and intentions, it brusquely swept these aside, holding

specifically that these constituted no evidence of intent

to create a trust,‘ and further stating, remarkably, that

there is “no rule” equating a charitable gift with intent

to create a trust. 718 F.2d 1224-25.°

The courts below thus confirmed the prosecution’s theory

that all it had to do to establish taxability was to show

legal title in the defendant plus a use of some part of the

assets in ways which could be characterized as personal.

And this, in fact, is all the government really attempted

to show.

* The court’s specific holding that a donor’s intent to create a

trust must be “clear and unequivocal,” laying emphasis on the im-

portance of using the specific word “trust,” is likewise counter to

the tide of authority generally, see, Scott, § 371.3 at 2885; Winn v.

Commissioner, supra; Morey v. Riddell, supra; and also to the trust

law of New York State, governing in this case. See, e.g., In re

Pattberg’s Will, 282 A.D. 770, 123 N.Y.S.2d 564 (1953), aff'd,

306 N.Y. 835, 118 N.E.2d 903 (1954) ; Mee v. Gordon, 187 N.Y. 400,

80 N.E. 353 (1907); Pierce Estates Inc. v. Commissioner, 3 T.C.

875 (1944); Manley v. Fiske, 139 A.D. 665, 124 N.Y.S. 149, 150-151

(1910) ; aff'd, 201 N.Y. 546, N. 95 N.E. 1183 (1911).

5Cf. Manley v. Fiske, 189 A.D. 665, 124 N.Y.S. 149, 150-151

(1910), aff'd, 201 N.Y. 546, 95 N.E. 1133 (1911). (Trust can be

established by will without express words of trust or gift, since

“fa] trust is almost inseparably involved with a gift for charitable

uses.”) See also, In re Price’s Will, 264 A.D. 29, 35 N.Y.S.2d 111,

114-15, aff'd, 289 N.Y. 751, 46 N.E.2d 354 (1942); Jn re Durbow’s

Estate, 245 N.Y. 469, 477, 157 N.E. 747, 749 (1927). Even if the

Second Circuit majority’s astonishing assertion were taken as a

correct statement of the law, a charitable gift, which this con-

cededly was, was in any event a gift to the Church and was thus

flatly incompatible with a personal gift to Moon as an individual,

which the government nevertheless contended and the court affirmed.

10

II. By Adopting, Ad Hoc and Contrary to Settled Princi-

ples, a New and Questionable Theory of Ownership

Which Permitted Court and Jury to Weigh and Adju-

dicate the Content, Validity and Truth of Bona Fide

Religious Doctrine, The Decision Violated The First

Amendment’s Religion Clauses and The Fifth Amend-

ment’s Due Process Guaranty.

Turning to the factors on which the Second Circuit ma-

jority did rely, we assert that the court opened the door

to the very invasion of protected belief which the rejected

authorities sought to prevent. These factors were: first,

the fact that Reverend Moon held legal title to the assets

and controlled them; second, the fact that the Church was

unincorporated, while other Church branches and organi-

zations were formally incorporated and had corporate

bank accounts; third, that in his handling of the assets,

Reverend Moon seemingly regarded them as his own, that

is to say, “he used funds from the accounts for expendi-

tures which the jury could have concluded were personal

in nature’; and fou, th, that high ranking members of

the Church were told that the funds belonged to “Father,”

an indication which might, without explanation, be taken

to mean that the assets were beneficially owned by Moon

personally rather than his Church. 718 F.2d at 1220,

1222. These factors, which were adopted ad hoc by the

court in substitution for the rejected “neutral principles”

of law, are examined in greater detail below.°®

Let us begin by considering the third factor, namely,

how the funds were used. The government attempted to

* We omit discussion of element one, legal title, since, as indicated

by the authorities cited above, this fact is not very helpful as an

indicator of where beneficial ownership lies, particularly in a situ-

ation such as this. As the dissenting opinion points out, 718 F.2d

at 1242, this issue was really conceded from the beginning, but is

an equivocal indication at best, since every trustee must hold legal

title and must exercise dominion and control, even though he does

not hold beneficial ownership, in order to carry out the obligations

of his trust.

11

show: that a portion of the funds was invested in two

business enterprises, repeatedly characterized, a priori,

as “personal” investments; that some were transferred to

other church branches; that other funds were lent to the

U.S. branch of the Church, an incorporated entity, to

assist its acquisition of residence properties and other

Church facilities; and, that the assets were referred to,

on occasion, within the Church, as “Father’s” money.

Lastly, the government urged, a small portion of the

funds was used for Re. erend Moon’s living expenses and

for the education of his children.’

Whether the use of this property was personal as

claimed by the government or was, instead, church-re-

lated thus became a critical issue.* It was not only rele-

7In 1973, these were paid directly from the principal Chase

account, and the amounts were reported by Reverend Moon as tax-

able income to him on his return for 1973. GX 590, 591, 597, 800;

T 3729-3730, through 3735, 3812-3813, 4094, 4982-4998; as from

May 1974, these personal disbursements were made from a separate

“household account.” GX 597; T 3581-3582, 3630-3631. These kinds

of persona! disbursements, particularly with clerical personnel, have

long been regarded as consistent with religious trust use and pur-

pose, and well within the range of a trustee’s discretion. Sze, e.g.,

Morey v. Riddell, supra, Winn v. Commissioner, supra. Citations to

the record as reprinted in the appendix submitted to the court of

appeals will be denoted as follows: citations to pleadings and rul-

ings, “A———”;; to pretrial transcripts, “P———”; to trial transcript

“T.——"; to post-trial transcripts, “S-———”; to government exhibits,

“GX——”; and to defense exhibits “DX——.”

®* Since the major portion of the funds was used for purposes

which were patently church related, i.e., to fund or assict in the

acquisition of residence, headquarters and other properties by the

U.S. branch, to purchase furnishings and equipment for these and

other properties owned by the U.S. branch and affiliated organiza-

tions, to provide funds for maintenance and operational expenses

for these properties, together with outright transfers of funds to

other church branches, the government’s claims of even seemingly

“personal” uses are properly attributable only to a portion of the

total expenditures during the period in question.

12

vant and material, but vital to the defense to counter the

suggestion of personal use by showing that these expendi-

tures benefited various church ministries, advanced the

Church’s mission and were therefore, church-related. It

sought to introduce evidence to establish that in the con-

text of Unification Church doctrine, these expenditures

advanced the Church’s purpose.

For example, the defense proved it was a central tenet

of Unification Church doctrine that the Church establish

a strong financial base with which to support and further

its mission, and that an important ministry was the

investment of Church funds in sound business enterprises

and the actual formation and operation of businesses, on

a proprietary basis, by other Church entities and mem-

bers—such as Tong I] Enterprises, the issuer of the

stock in question.’

It was also undisputed that Reverend Moon, as founder

and leader of the International Unification Church Move-

ment, was regarded by his followers as the very embodi-

ment of their faith. This fact, the defense showed, was

central to an understanding of why, in Unification belief,

a reference to Reverend Moon, who is frequently called

by the affectionate term “Father,” was the equivalent of

a reference to the office he held—and the Movement he

led—rather than to the individual himself.” Thus, as

* An obvious parallel is the example of the Christian Brothers

Winery, owned and operated by a Catholic Order. The reason for

this, of course, is that the fruits of this operation furnish valuable

financial support to a recognized religious order, and it is clearly

“church related” in this sense. It is important to bear in mind

that this characterization was not being made for the purpose of

claiming a tax exemption or investing an otherwise secular opera-

tion with an ecclesiastical gloss, but, rather, to say that its use,

in this context, served a legitimate religious purpose, i.e., furnishing

financial support, and was thus clearly church-related.

1© To say that the Reverend Moon was the embodiment of the faith

was not to say, as the court implies, that his person was indis-

13

the embodiment of the faith, he was at the same time the

custodian of the assets marshaled for the furtherance of

its mission.

As the majority opinion notes, Reverend Moon was

the spiritual leader of his Church, just as the Pope is

the spiritual leader of the Roman Catholic Church. 718

F.2d at 1227. Pope John Paul II is frequently referred

to by the term “Holy Father,” and in that context, a

reference to the Holy Father’s money or property would

certainly be equated with ownership of the property by

the Holy See, rather than by “John Paul” as an indi-

vidual, for the term Holy Father bespeaks the office

itself, not the individual who holds it at a given moment.

The same point was asserted with respect to Reverend

Moon by the defense in this case, but completely mis-

construed by the Second Circuit.

The government met these explanations with insistent

claims that the Church’s theology had nothing to do with

Reverend Moon’s “personal” business ventures and by

repeated objections to the introduction of such evidence.

These objections were, in major part, sustained by the

trial court.

The court also refused requested defense instructions

which would have given effect to the members/donors’

intent. It refused to instruct that the International

Unification Church Movement was personified by Rev-

erend Moon, as its founder and spiritual leader. Nor

did the court caution the jury that it could not question

or probe into matters of Unification belief or teaching,

but must accept these things at face-value, particularly

such evidence as there was concerning the religious uses

or purposes of the expenditures, the relationship of the

Reverend Moon to the Church and the like. Instead, the

tinguishable from his office. This is clear from the fact that a

portion of the funds used by Reverend Moon for personal living

expenses and his children’s education were reported on his 1978 tax

return as being personal to him, as an individual, and on which

he paid taxes.

14

court specifically invited the jury to delve into, examine

and decide these matters for themselves, on whatever

basis they wished, or to reject them altogether.

The Second Circuit approved this open-ended, blank check

authority which was thus handed to the jury, specifically

holding that “the jury was not bound to accept the Unifica-

tion Church’s definition of what constitutes a religious

use or purpose... .” It also approved the charge which

enabled the jury to draw its own conclusions regarding

the significance of Reverend’s Moon’s position in the

Church, regardless of Church theology. 718 F.2d at

1227-28.

The jury was thus given a free hand to do just what

the teaching of the cases tells us the Religion Clauses

specifically forbid. It was empowered to look into the

beliefs and theology of Reverend Moon’s Church, evaluate

their validity, their truth and their religious character.

It was left perfectly free to judge the character of the

expenditures by deciding what the Church’s mission was

or was not, what its purposes were or weren’t. It was

turned loose to rewrite church theology and assign what-

ever significance it chose to Reverend Moon’s position in

the Church, regardless of what he or his followers felt

or thought about it. And, of course, it was also free to

treat these percepts as rubbish and reject or ignore them

altogether. Thus, under the Religious Clauses, no jury, or

court or government agency, for that matter, should have

been permitted to do.

Amici assert that while freedom of religious action

may be subject to limitation in response to a compelling

state interest, the freedom to believe is absolute. “The

door of the Free Exercise Clause stands tightly closed

against any governmental regulation of religious beliefs

as such,” Sherbert v. Verner, 374 U.S. 398, 402 (1963),

citing Cantwell v. Connecticut, supra, 310 U.S. 296, 303

(1939).

15

Furthermore, the freedom to believe encompasses the

freedom to determine, on the basis of one’s own criteria,

the shape and content of one’s religious beliefs. The

government enters upon a sensitive and perilous under-

taking when it attempts to define the scope of religious

belief, even within broad limits. See, United States v.

Seeger, 380 U.S. 162, 184 (1965); Welsh v. United

States, 398 U.S. 333, 339-40 (1970).

Thus, the truth or falsity of religious beliefs, sin-

cerely held, may not be examined or questioned. United

States v. Ballard, 322 U.S. 78 (1944). “If one could

be sent to jail because a jury in a hostile environment

found ... [one’s religious] teachings false, little indeed

would be left of religious freedom.” 322 U.S. at 87

(Douglas, J.). As held in that case, a jury may not

determine the truth or falsity of the religious belief or

doctrine of any sect. “When the triers of fact undertake

that task, they enter a forbidden domain.” 322 U.S. at

87 (emphasis added). In matters involving religious be-

lief, the only permitted inquiry is whether the belief is

sincerely held—an issue not raised in this case. 322 U.S.

at 81.

In similar fashion, a court must accept a religion’s

own good faith determination of what is religious, in ac-

cordance with its teaching, and what is not, at least

when the only issue is whether various uses of the funds

were religious and that the funds were held for the re-

ligion. When purposes and activities of a religious or-

ganization are claimed to be other than religious, the

civil authorities may engage in but two inquiries: “Does

the religious organization assert that the challenged pur-

poses and activities are religious, and is that assertion

bona fide?” Holy Spirit Association v. Tax Commission,

55 N.Y.2d at 521. Courts may not “go behind the de

clared content of religious beliefs any more than they

may examine into their validity.” Heritage Village

16

Church v. State, 299 N.C. 399, 263 S.E.2d 726, 735-36

(1980) ."

The religious character of ancillary activities under-

taken by churches of religious organizations in support

or furtherance of their mission must likewise be re-

spected. Murdock v. Pennsylvania, 319 U.S. 105, 108-09

(1943). The fact that such activities may be business

enterprises—as in the case of the Christian Brothers

Winery, or import companies, as in the instant case—

which are not religious in themselves, does not mean that

in the context of support and furtherance of a church’s

mission they may not, in that church’s view, serve or

fulfill a religious use or purpose. 319 U.S. at 111."

In the instant case, no question was raised by the

government regarding the bona fides of the Unification

faith or of the precepts and teachings evidenced at the

trial. The rules of the foregoing cases thus clearly ap-

plied. The court was bound to accept them at face-value

and to instruct the jury that it was similarly bound. If,

under Unification Church teaching, the expenditures were

Church-related and in furtherance of the Church’s re-

11 See, also, Serbian Orthodox Diocese v. Milivojevich, 426 U.S.

696, 713 (1976). (The question of proper purposes is an ecclesias-

tical one.) Lemon v. Kurtzman, 403 U.S. 602, 620 (1971). (The

Supreme Court has been especially sensitive to state entanglement

in what is religious and what is secular.) Accord, Korn v. Rabbinical

Council, Cal.App.3d , 195 Cal. Rptr. 910 (1983), holding

that civil courts are without jurisdiction to determine ecclesiastical

questions and dismissing a case where the determination of such a

question was unavoidably central to the case.

12 The issue in Murdock v. Pennsylvania, supra, was one of tax

exemption. No real question was raised concerning the church

related character of the activity in question, only whether it should

be exempt from a license tax. As we emphasize above, no such

consideration is present here, where the question is one of church

property ownership. In this context, the only issue is whether, in

the sincerely held belief of the competent church authorities, the

uses and expenditures in question advanced and supported the

Church’s mission, a clearly protected determination.

17

ligious mission, the relevance of that fact is patent and

undeniable, since Reverend Moon, in directing these uses

of the funds was acting consistent with the fiduciary

role alleged by the defense. All such evidence should have

been admitted and accepted by the court.

The fourth factor upon which the Second Circuit ma-

jority relied was the fact that the funds were referred to

as “Father’s.” If, under the teaching of Unification the-

ology, a reference to Reverend Moon, or “Father,” the

founder and leader of the International Church Move-

ment, was tantamount to a reference to the Movement

itself, that fact, too, was clearly relevant as tending to

show why references which might, in ordinary cireum-

stances be taken as personal were, in this context, in fact,

just the opposite. This, too, should have been admitted

and accepted, and the jury so instructed in clear and un-

ambiguous terms."*

Instead, the Second Circuit, in violation of the prin-

ciples above expressed, approved a trial court approach

and a jury charge which, to the extent that it did not

exclude consideration of Reverend Moon’s religion alto-

gether, directed the jury to sit in judgment upon it, with-

out any guidance or limitation whatever. In effect, the

court authorized the jury, if it wished, to redraw, re-

define or otherwise cancel or reshape the Church’s doc-

trine, its missions and ministries, contrary to the deter-

minations of the Church and the membership itself. A

more thoroughgoing repudiation of the First Amend-

183 On the continuum of constitutional religious protection running

from belief, which is absolutely protected, on the one hand, Cantwell

v. Connecticut, supra, to religious action, which by its nature is not

absolutely protected, but may be circumscribed in response to a com-

pelling governmental interest, Sherbert v. Verner, supra, the use

of terms and nomenclature within a church, in accordance with

sincerely held belief and doctrine, is certainly most proximate to

belief and thus merits absolute protection. The decision in this

case, however, does not simply impair or damage that protection;

it strips it away altogether.

18

ment’s promise of free exercise and violation of its pro-

hibition against establishments of religion can scarcely

be imagined.

Looking to the second factor relied upon by the Second

Circuit, the government was permitted to develop and

argue that the International Church’s unincorporated

status and lack of formalized structure meant that it did

not exist at all, T.5516-17, 6227, 6229, 6488-92. More-

over, the trial court went further and dignified the ar-

gument by precise and detailed instructions which gave

it prominent emphasis.'* How could the court deny that

this particular choice of structure, form of holding and

deployment of resources were matters of decision internal

to the Church and inseparably bound up with considera-

tions of its purpose and mission.

Such matters of church organization, internal struc-

ture, polity and resource management are no less reli-

gious or ecclesiastical in character than other matters of

doctrine and belief. Serbian Orthodox Diocese v. Milovo-

jevich, 426 U.S. 696, 708-09, 721-23 (1976); Kedroff v.

St. Nicholas Cathedral, 34 U.S. 94, 120-21 (1954). If

such matters may not be questioned, consistent with the

Religion Clauses, how much more clear must it be that

such protected determinations as choice of structure,

governance and the like, may not be made the subject of

a penalty, whether visited upon the organization itself or

one of its members? Speiser v. Randall, 358 U.S, 24

(1965) ; Mt. Healthy City Bd. of Education v. Doyle, 429

4 As the very first element in the instruction dealing with the

factors to be considered in determining whether a trust existed,

the following language appears: “in determining whether in 1978,

1974 and 1975, the International Unification Church Movement

existed and whether the Movement owned the funds in the Chase

accounts and Tong I), or whether Reverend Moon owned them, you

should consider all the evidence, including such factors whether

the Movement had a specific organizational structure, written

charter or constitution, the existence of other Unification Church

corporate entities during the relevant time period. .. .” 718 F.2d

at 1244, n.3.

19

U.S. 274 (1977). See also, Larson v. Valente, 456 U.S.

228 (1982).

Despite the clear teaching of the above cases, how-

ever, the jury was empowered to declare that the In-

ternational Unification Church was legally non-existent.

The First Amendment clearly and explicitly forecloses

such matters from any such inquiry or consideration.

CONCLUSION

In his eloquent “Memorial and Remonstrance Against

Religious Assessments,” Everson v. Board of Education,

330 U.S. 1 (1947), James Madison observed that, “it is

proper to take alarm at the first experiment on our

liberties .. . [rather than waiting until] ... usurped

power had strengthened itself by exercise, and entangled

the question in precedents.” One of the major evils in

the bill, which was the subject of this document, was

the fact that “the bill implies... that the Civil Magis-

trate is a competent Judge of Religious truth... an

arrogant pretention falsified by the contradictory opin-

ions of Rulers in all ages....” Jd. at 65, 67. Madison’s

prescient observations make it clear that neither the

methods of religious tyranny nor their consequences

change over the centuries.

The Second Circuit has sanctioned the government’s

use of religious faith and teaching as a weapon against

a church official, while excluding and denying it as a

shield in his defense.

By piercing and sundering constitutional barriers

erected to protect religious belief and matters of internal,

ecclesiastical jurisdiction, the court opens the way for

outright persecution. This latter odor hangs about the

case, admittedly containing “troubling issues of religious

persecution and abridgement of free speech,” 718 F.2d

at 1216, for the court approved the criminal prosecution

of a church leader, even while acknowledging that he was

singled out for investigation because of his highly visible

20

position as the founder and prophet of a new and widely

disliked religion.

Unless this court accepts and reviews the Second Cir-

cuit’s decision, amici believe that they may yet live to

realize the gloomy consequence foreseen by Justice

Douglas in the seminal decision of United States v. Bal-

lard, supra, for here, indeed, a jury, in a hostile envi-

ronment, was empowered to sit in judgment upon the de-

fendant’s religious beliefs and decide whether they were

true or false. If the decision is allowed to stand, “little

indeed [will] be left of religious freedom.”

For the foregoing reasons, the petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

J. CURTIS HERGE *

ROBERT R. SPARKS, JR.

PHILIP H. BANE

SEDAM & HERGE, P.C.

Suite 1100

8300 Greensboro Drive

McLean, Virginia 22102

(703) 821-1000

*Counsel of Record for

Amici Curiae

Coalition for Religious Freedom

Christian Voice, Inc.