Amicus Curiae Brief — United States Catholic Conference v. Abortion Rights Mobilization, Inc.

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| w~ No. 83-416

ar : = In the

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a Supreme Court

of the United States

OCTOBER TERM, 1987

UNITED STATES CATHOLIC CONFERENCE and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

Petitioners,

VS.

ABORTION RIGHTS MOBILIZATION, INC., and

JAMES A. BAKER, III,

SECRETARY OF THE TREASURY, and

LAWRENCE B, GILLS,

COMMISSIONER OF INTERNAL REVENUE,

Respondents.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND

BRIEF AMICUS CURIAE

OF THE NATIONAL COUNCIL OF CHURCHES OF CHRIST IN

THE US.A., THE BAPTIST JOINT COMMITTEE ON PUBLIC

AFFAIRS, THE CATHOLIC LEAGUE FOR RELIGIOUS AND

CIVIL RIGHTS, THE CHRISTIAN LEGAL SOCIETY, THE

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, THE

LUTHERAN CHURCH-MISSOURI SYNOD, AND THE

NATIONAL ASSOCIATION OF EVANGELICALS, IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Of Counsel: EDWARD McGLYNN GAFFNEY, JR.

DOUGLAS LAYCOCK Counsel of Record

A. DALTON CROSS PROFESSOR ASSOCIATE PROSESSOR OF LAW

UNTV. OF TEXAS LAW SCHOOL LOYOLA LAW SCHOOL

727 East 26th Street 1441 West Olympic Boulevard

Austin, Texas 78705 Los Angeles, California 90015

($12) 471-3275 (213) 736-1187

Attorneys for Amici Curiae

Publishing and Graphic Electronic Services (PAGES) / (213) 474-7855

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QUESTIONS PRESENTED

Whether an order holding a major religious body in civil

contempt and imposing substantial fines for refusal to comply

with massive discovery requests for sensitive internal church

records should be vacated for want of subject matter

jurisdiction because the plaintiffs lack standing, either as

voters or as members of the clergy, to challenge directly the

tax-exempt status of the religious body because of its activity in

furtherance of sincerely held religious convictions on a matter

of public concern.

Whether a major religious body held in civil contempt may

be denied standing as a witness to challenge the underlying

jurisdiction of the federal court which entered the discovery

order and found the church in civil contempt, on the view that

“colorable” jurisdiction suffices to postpone consideration of

the church’s jurisdictional challenge until the requested

discovery of the church’s records is completed and the

underlying action to revoke the tax-exempt status of the

church is decided on the merits.

TABLE OF CONTENTS

Page

Questions Presemted ........s.essssssecsssssessnessnesnennesnnennesnnssnseeneeneeeny i

Table of Authorities ............cccccsssessesseseerenssenseesnesseseesenercesnens Vv

Motion For Leave to File Brief Amicus Curiae

and Statement of Interest of Amici Curiae .... vill

ALZUMEN .....ceccecsecseensenseneessensensnnenensensenransnncansnnsnssnsnncnenenncensesss l

1. This Court Should Grant the Writ Because

the Sensitive Task of Revocation of the

Tax-Exempt Status of Religious

Organizations Should Not Be Entrusted to

Private Third Parties Merely Because They

Do Not Agree With the Message of

Religious Not-For-Profit Organizations

Engaged in Public Statements of Moral

Positions on a Variety- of Public Policy

DHGRROTS onccccesecsnecsccesccsccscersscscecsccssecsecsssccossnccassccsscnsoeseeseees l

A. The District Court Erred in Conferring

Standing on the Private Respondents

(Plainti*fs below) to Challenge the Exempt

Status of a Major Religious Organization

on the Grounds that the Plaintiffs are

either Voters or Members of the Clergy

(i) Voter stamding .............seseceesesesesreneeeeneneseetenenees 4

(ii) Clergy standing .............sececessesreseeseeneneeseneneees 5

B. The Private Respondents Lack Statutory

Standing because Congress has Entrusted

the Sensitive Task of Granting and

Revoking the Tax-Exempt Status of

Charitable Organizations not to Private

Parties, but to the Federal Respondents

I].

—1lii—

This Court Should Grant the Writ Because

the Decision of the Court of Appeals

Undermined the Ability of a Major

Religious Organization to Challenge the

Power of a Federal Court to I.npose

Substantial Fines on the Church For Its

Refusal To Hand Over Extensive Internal

Documents Relating to Pastoral Plans to

Engage In Constitutionally Protected

Activity Through Moral Advocacy on

Matters of Public Concern Presented to

the Electorate For Their Deliberation and

Decision

A. Where a Major Religious Body is Held in

Civil Contempt as a Witness in Exemp-

tion-Revocation Proceedings Initiated by

Outsiders Hostile to its Message on a

Matter of Public Concern, the Court of

Appeals Erred in Denying the Church

Standing to Challenge the Underlying

Jurisdiction of the District Court to Order

Discovery of Sensitive Internal Docu-

ments, on the View that “Colorable”

Jurisdiction Suffices to Postpone Consid-

eration of the Church’s Jurisdictional

Challenge until the Requested Discovery

of the Church’s Records is Completed and

the Underlying Action to Revoke the Tax-

exempt Status of the Church is Decided on

the Merits

. The Ability of a Religious Organization to

Engage in Protected Activity is Severely

Chilled when Federal Courts Impose

Substantial Penalties on the Church for

Failure to Comply with unduly Burden-

some and Overbroad Subpoenas Seeking

a eee

Conclusion

—iv—

Extensive Discovery of Internal Records

of the Pastoral Plans of the Church .................

(i) Communicating sincerely held reli-

gious convictions on matters of public

concern is protected activity ........csss0

(ii) The scope of requested discovery is

CD, a cceceivinirerseneseitimnntinnante praiias

(iii) The penalties imposed on the peti-

tioners are excessive because

certification is an equally effective

alternative less restrictive of religious

AULONOMY ........-ecececesssevsseerererncnseeescnssssesssssees

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TABLE OF AUTHORITIES

Page

Cases

Abortion Rights Mobilization, Inc. v. Regan,

544 F. Supp. 471 (S.D.N.Y. 1982) sees 2, 20

Abortion Rights Mobilization, Inc. v. Regan,

603 F. Supp. 970 (S.D.N.,Y. 1985) sven 6

Abortion Rights Mobilization, Inc. v. Baker,

110 F.R.D. 337 (S.D.N.Y. 1986) ....ccccccesessceeeeeeserees 1

Allen v. Wright, 468 U.S. 737 (1984)... passim

American Society of Travel Agents, Inc. v.

Blumenthal,

566 F. 2d 145 (D.C. Cir. 1977) cceccccesecsesseeseeessees 10

Baker v. Carr,

369 U.S. 186 (1962) on. ceccccccsercsrereeenestenseeerssesteeneensnenes 4

Bemis Pentecostal Church v. State,

app. pending, No. 87-317 .......-sssesseseseeeesrsensnseeseee 15

Bender v. Williamsport Area School Dist.,

ATS US. 534 (1986) ..ccccccescsssscssesseeerenssssseerecsesesnenees 12

Blair v. United States,

250 U.S. 273 (1919) .ccccccccscsssssssccerrescsrserssssensnsssnsnrense 13

Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 723 (1975) -ceccccsocecsscsseecsecerssrsecercesses-seeseneees 18

Bob Jones University v. United States,

AG1 U.S. 574 (1983) ..cccccsccseressersreeessseenecesseseeressennenes 13

Corp. of Presiding Bishop v. Amos,

483 US. —_—, 107 S.Ct. 3862 (1987) ...-.ccceecees 14

Doremus v. Board of Education,

B42 US. 429 (1952) ccsccccscssssesceseseeesseeenseeenseeserenenenens 6

Flast v. Cohen,

392 U.S. 83 (1968) .......cecccsssscccercererssssesccessssessrsnesnees 8

Gladstone, Realtors v. Village of Bellwood,

4AL U.S. 91 (1979) .ccccceccccccsscssssercncerenesccscnnsessessssrenenees 3

ee ia ite i ee

— Y¥i—

Heckler v. Chaney,

eee | ES 10, 13

Heffron v. ISKCON,

Oe I I i 14

Hobbie v. Unemployment Appeals Commission,

480 U.S. __, 107 S.Ct. 1046 a 19

In re United States Catholic Conference,

824 F. 2d 156 (2d Cir. WUE, Seailsiinibiteiie 12

Khalaf v. Regan,

85-1 U.S. Tax Case 1 9269 (D.D.C. SD seiielas 19

McDaniel v. Paty, 435 U.S. 618 ROR RDIRESSRENARR Ns 14

NAACP vy. Button, 371 US. 415 PME ceasihcamisdkcicioeeans i8

New York Times v. Sullivan,

SP ed 15

Schlesinger v. Reservists Committee to Stop the

War, 418 U.S. 208 (1974) ooooccccccccccccccscsccscccoee..... 3, 6

Sherbert v. Verner, 374 US. 398 Sas 19

Simon v. Eastern Kentucky Welfare Rights Org.,

OP PA SP CUFOD vvcctesicetenecesatenetannsen, 3, 4, 7, 8

Thomas v. Review Board,

I PN a fs 19

United States v. Cox,

342 F.2d 167 (Sth Cir. 1965) cooccccccccccccscsccecosses.... 13

United States v. Richardson,

MR WE WU CUD U ID cnisiaccteteincscnsenssrsnsiareeees. 3

United States v. Ryan,

LS) | a as 12

Valley Forge Christian College v. Americans

United for Separation of Church and

State, 454 U.S. 464 I hice passim

Walz v. Tax Commission,

eS eee vii, 7, 8

Warth v. Seldin,

422 US. 490 (1975)

— Vvil—

Westminster Investing Corp. v. G. C. Murphy

Co. 434 F.2d 521 (D.C. Cir. 1970) .seccccccceeeeeeee: 18

Wisconsin v. Yoder, 14. 19

406 U.S. 205 (1972) ccesccccesecssereesseeneeerseecenennensenes ;

Zerilli vy. Smith, :

656 F.2d 705 (D.C. Cir. 1981) -.-ccccecceceereesereeseeees 18

Statutes

si ET scuictonstueninntian viii, ix, 3, 9, 10, passim

scpilianadie ix

§ 2055(a)({2) aN ee “s

§ 2106(a)(2) ites an gegen ANAM SRI a

§ 2522(a)(2) sonia eC aNSN CEN ANTITE °

§ 6103 oeeesecsesseeneeneenssnsensnnennennenens EURCERROSNNS :

_ lament rman aA :

§ 7605 ioneneonreneianmnanice nent tert = :

§ 7801(a) creeper 00m :

§ Se somenrsvencemminormeraer nC To .

§ § S801 et Seq. ness erseerseerrnernneenessnnssnneennsnnncnnnsnnnssens

Miscellaneous

Caron and Dessingue, “I.R.C. § 501(c)(3): } ,

Practical and Constitutional Implications o

‘Political’ Activity Restrictions,” 2 J. of L.

and Politics 169 (1985) .....-:-ssesseeessereeeeeeeeeereesees:

islati blic Charities,

Influencing Legislation by Pu

4 Hearings, 94th Cong., 2d Sess. (1976)... 16

Laycock, “Towards a General Theory of the

Religion Clauses,” 81 Colum. L. Rev. 1373

(1981) ccsccsssessssssssseeseescrsceneesssnssnncsnssnennsenecnscnsnnesnssnesasenes

islati ivi Organizations,

Legislative Activity By Exempt

: Hearings, 92nd Cong., 2d Sess. Qa —

— vili—

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND

STATEMENT OF INTEREST OF AMICI CURIAE

At first blush this case seems to be a straightforward matter

of standing. Petitioners and federal respondents have suggested

that this Court should grant the writ because the rulings of the

district court and the court of appeals on standing represent

significant departures from the binding precedents of this

Court.

Amici curiae are major religious bodies in the United States,

or membership organizations concerned with the preservation

of religious freedom. Amici express concern that these

standing errors have a First Amendment flavor because of

their potentially severe impact on the ability of religious bodies

to communicate their message freely on matters of public

concern. The conferring of standing to challenge the exempt

status of a religious body on private third parties who are

hostile to the teachings of that religious body represents a

serious inroad on the fragile freedoms of all bona fide religious

bodies.! This negative impact on religious freedom is

| The remedy sought by the plaintiffs is court-ordered revocation

of the tax-exempt status of the church. For the reasons argued in the

attached brief, amici suggest that the use of the courts to obtain this

relief undermines the necessary degree of flexibility required under

Walz v. Tax Commission, 397 U.S. 664 (1970), where this Court taught

that the central meaning of the Establishment Clause is that ‘‘no

religion be sponsored or favored, none commanded, and none

inhibited... . Short of those expressly proscribed governmental acts

there is room for play in the joints productive of a benevolent

neutrality which will permit religious exercise to exist without

sponsorship and without interference.” Id., at 669. It is difficult to

conceive of greater authoritarian rigidity than to give to any

opponent of the teachings of a religious body access to federal court

to seek an injunction to compel the revocation of that church's

exemption from the payment of federal income tax and a whole series

of cascading events flowing from the loss of that status. With the loss

of exempt status under I.R.C.§ 501(c)( 3), a religious body would not

only have to pay taxes on all income, but all contributions to the

—

demonstrable irrespective of whether the focus of the

controversy is, as here, the vexing issue of abortion or is some

equally pressing social issue about which a religious body

wishes to communicate with the public. It is likewise

demonstrable irrespective of the substantive convictions of any

religious body on a controversial matter of public concern.

' Amici have sought the consent of the parties to participate

in this matter by the filing of the attached brief. The

petitioners and the federal respondents have granted their

consent. The original and a copy of the consent letters of the

counsel of record for the petitioners and of the Solicitor

General have been submitted to the Clerk of this Court. This

motion is required because the private respondents (Abortion

Rights Mobilization, et al.) have refused to allow the leaders or

representatives of major religious bodies who have signed the

attached brief to be heard in this Court on this matter.

Amici are aware that motions for leave to file an amicus

brief in advance of the grant of certiorari are disfavored under

Rule 36.1 of this Court, but file this motion nonetheless

because of the pressing national significance of this case and

because of their unique ability to suggest to this Court the

impact of this litigation on the autonomy and integrity of all

religious bodies, irrespective of their convictions about the

ethics of abortion.

As is evident from the statement of interests of the amici in

this motion, some of the amici agree with the position of the

petitioners on the abortion issue, and others do not.

church would no low. < de deductible by the contributing taxpayer

for purposes of federai income tax, L.R.C. § 170(c)(2)(D), federal

estate tax, IL.R.C.§ § 2055(a)(2) and 2106(a)(2)(A)(ii), and federal gift

tax, IR.C.§ 2522(a)(2). In addition, most of the states have parallel

provisions in their tax codes which incorporate I.R.C. § 501(c)(3) by

reference, for purposes of determining the exemption of a religious

body from payment of a wide variety of state and local taxes. Some

states, moreover, predicate their regulatory authority over an entity

seeking charitable contributions on the entity's federal tax-exempt

status, conferring, for example, an exemption from annual reporting

requirements to groups which are exempt under § 501(c)( 3).

Nonetheless, all of the amici are of one mind that in our

constitutional order a religious body must be free to address

matters of public policy without being subjected on that

account to harassing litigation by outsiders. Thus, a church

which disagrees with the petitioners on the abortion issue

should not be exposed to costly litigation by right to life

advocates who might, under the theory advanced by the

plaintiffs in the instant case, attack the exempt status of a

“pro-choice” church for allegedly excessive involvement in the

political order on the opposite side of the abortion issue.

In the view of the amici, this case involves four mistakes.

The first two relate to the legal standing of the petitioners and

the private respondents. The other two relate to the fragile civil

liberty of religious freedom. None of these constitutional errors

is “harmless.” Each of them merits the attention of this Court.

This conclusion is all the more necessary since the case is

compounded by a juxtaposition of four serious constitutional

errors.

The first standing mistake was the ruling of the district

court that the private respondents (plaintiffs below) have

standing, either as voters or as members of the clergy, to

challenge the tax-exempt status of a major religious

organization. This mistake enlarges the power of the judiciary

and diminishes the role of the executive over the administra-

tion of federal tax policy in a manner directly contrary both to

the requirements of the constitution and to the clear intent of

Congress.

The second standing mistake was the ruling of the court of

appeals that the petitioners lack standing as witnesses to

challenge the subject matter jurisdiction of the federal court to

enter a compulsory discovery order against a religious body,

and to hold the church in civil contempt for its refusal to

comply with the discovery order. This mistake bootstraps the

governmental interest in efficient administration of criminal

justice into an undiff erentiated power over religious bodies in a

civil suit, on a record where it is plain that the church had no

legal mechanism available to it other than civil contempt in

order to seek appellate review of the first standing mistake.

— (

The first mistake relating to religious freedom was the ruling

of the district court requiring the petitioners to hand over to

the plaintiffs massive amounts of sensitive internal church

records, including confidential tax returns which the private

respondents may not obtain from the federal respondents

because Congress has expressly prohibited the executive from

disclosing such information to anyone, let alone to the political

adversaries of a not-for-profit religious organization. The

permissibility of this contempt citation under the facts in this

case and under relevant free exercise standards is adequately

preserved on this record, but this Court may avoid a decision

on this issue by focusing, as the parties themselves apparently

prefer to do, on the standing questions. In the event that this

court elects this parth, amici urge this Court to make plain that

the question of intrusive civil discovery of the internal records

of a religious body is reserved, and to refrain from dicta that

would serve in any way to diminish the associational privacy of

religious bodies by broadening access to their internal records

by hostile outsiders.

The second mistake relating to religious freedom involves

the raw judicial power of the district court in holding a major

religious body in civil contempt and in imposing fines in the

amount of $100,000 per day on the church petitioners for each

day in which they refuse to comply with the court’s

compulsory discovery order. The permissibility of this

contempt citation under the facts in this case and under free

exercise standards is adequately preserved on this record, but

this Court may likewise avoid a decision on this issue by

focusing on the standing questions. In the event that this Court

elects this path, amici urge this Court to make plain that the

imposition of coercive fines on the magnitude in this case is a

reserved question, and to refrain from any dicta that would

serve to diminish the legitimate autonomy of religious bodies

by expanding judicial power over these bodies where less

restrictive alternatives (e.g., certification of the ruling on the

standing of the plaintiffs for an interlocutory appeal) would

serve any interest which may be asserted on behalf of orderly

administration of justice and would obviate inquiry into

— xii—

whether the interest in behalf of the contempt order in this

case was truly “compelling.”

The statement of the interest of each amicus participating in

this brief follows.

The National Council of Churches of Christ in the U.S.A.

[NCC] is a community of thirty-one religious communions

numbering over 40 million members. Some of these commun-

ions would agree with the views expressed by the petitioners

concerning the morality of abortion; some of them would

disagree. All of them have agreed, however — through their

representatives on the Governing Board of the NCC — in

support of religious bodies and all citizen groups to speak and

to act on questions of public policy without suffering state-

imposed penalties or disabilities. The Governing Board of the

NCC has specifically recommended that its member commun-

ions not impair the relationships of confidence and trust within

the religious community by disclosing to outsiders “‘the names

of contributors, members, constituents . . . [or] personnel files,

correspondence or other confidential and/or internal docu-

ments or information.” The NCC joins this brief in support of

the right of a religious body to be free of governmental

constraint to disclose such information to hostile outsiders.

The Baptist Joint Committee on Public Affairs [BJCPA]

consists of representatives elected by each of eight cooperating

Baptist conventions in the United States: American Baptist

Churches in the U.S.A.; Baptist General Confereace; National

Baptist Convention of America; National Baptist Convention,

US.A., Inc.; North American Baptist Conference; Progressive

National Baptist Convention, Inc.; Seventh Day Baptist

General Conference; and Southern Baptist Convention. These

Baptist groups have nearly 30 million members and reflect the

traditional Baptist concern for proper church-state relations.

The BJCPA has as one of its mandates the obligation to

respond “whenever Baptist principles are involved in, or are

jeopardized through, governmental action.” Among Baptists,

the freedom of the church from entangling relationships with

the government is a fundamental and sacred principle.

— xlli—

The Catholic League for Religious and Civil Rights

[League] is a civil rights and anti-defamation organization,

national in membership, dedicated to the defense of religious

liberty and freedom of expression. Although the League does

not purport to speak directly as the official voice of a religious

body, this case raises substantial questions relating to central

concerns of the League’s members. When antagonists of a

particular church invoke the power of the government to

conduct far-reaching and intrusive examination of sensitive

internal church documents, religious liberty suffers. When

political opponents seek to penalize protected expressive

activity crucial to effective church teaching on matters of

public concern by maintaining costly and burdensome lawsuits,

genuine freedom of expression is chilled and cannot flourish.

The Christian Legal Society [CLS] is a non-profit

professional association of 3,500 Christian judges, attorneys,

law professors and law students founded in 1961. The Center

for Law & Religious Freedom is a division of the CLS founded

in 1975 to protect the free exercise of religion, supporting the

appropriate accommodation by the state of religious beliefs

and practices and the respect for religious rights required by

the First Amendment.

The Church of Jesus Christ of Latter-Day Saints [LDS

Church] has an international membershp in excess of 6 million

members with general headquarters in Salt Lake City, Utah.

There are in excess of 8,400 congregations in the United States.

In the view of the hierarchical leadership of the LDS Church,

viz., The First Presidency and The Quorum of the Twelve

Apostles, the instant case raises serious questions as to whether

faithful attention was paid to constitutional guarantees of

religious freedom. The leadership of the LDS Church also

expresses grave concerns as to the consequences of court-

ordered opening of sensitive church records as was mandated

by the lower court.

The Lutheran Church-Missouri Synod is the second largest

Lutheran denomination in North America and the eighth

largest Protestant body in the United States. It has

approximately sixty-two thousand member congregations

ee

which, in turn, have approximately 2.6 million individual

members.

The National Association of Evangelicals, located in

Wheaton, Illinois, is a non-profit association of evangelical

Christian organizations, including fifty thousand churches

from seventy-eight denominations. It serves a constituency of

10 to 15 million people through its commissions and affiliates.

For the reasons stated in this Motion for Leave to File a

Brief Amicus Curiae, amici respectfully urge this Court to

grant their motion and to grant the petition for certiorari.

Respectfully submitted,

EDWARD McGLYNN GAFFNEY, JR.

Counsel of Record

Associate Professor of Law

Loyola Law School

1441 West Olympic Blvd.

Los Angeles, CA 90015

(213) 736-1157

Of Counsel:

DOUGLAS LAYCOCK

A. Dalton Cross Professor at Law

University of Texas Law School

727 East 26th Street

Austin, TX 78705

(512) 472-3275

Attorneys for Amici Curiae

ARGUMENT

I,

THIS COURT SHOULD GRANT THE WRIT BE-

CAUSE THE SENSITIVE TASK OF REVOCATION OF

THE TAX-EXEMPT STATUS OF RELIGIOUS OR-

GANIZATIONS SHOULD NOT BE ENTRUSTED TO

PRIVATE THIRD PARTIES MERELY BECAUSE

THEY DO NOT AGREE WITH THE MESSAGE OF

RELIGIOUS NOT-FOR-PROFIT ORGANIZATIONS

ENGAGED IN PUBLIC STATEMENTS OF MORAL

POSITIONS ON A VARIETY OF PUBLIC POLICY

MATTERS.

At one level this case is truly one of first impression. For the

first time since the founding of the republic a federal district

court has found a major religious body, the Roman Catholic

Church [church] comprising some 52 million Americans,

represented according to their governing polity by the

petitioners, in contempt of court. And the district court has

imposed significant penalties, in the amount of $100,000 a day

for each day’s refusal to comply with the discovery requests of

the plaintiffs, Abortion Rights Mobilization, Inc. v. Baker, 110

F.R.D. 337 (S.D.N.Y. 1986). A. 441-5Sla.2 Amici address the

national significance of the sweeping discovery order and the

contempt citation in Part II B of this brief, infra.

At another level this case is but a classic illustration of why

there are rules on standing, and of the pernicious consequences

of ignoring those rules. The underlying reason for this church’s

reluctant decision to allow itself to be held in contempt of

court is its conviction, based on the advice of its legal counsel,

2 In an unreported order on May 9, 1986 the district court stayed

the fines imposed in his order of May 8. A. 52a. The court of appeals

has also granted a stay during the pendency of the appeal to this

Court. A. 105a, 108a.

that the district court lacks jurisdiction over the subject

matter, and therefore is without power to enforce the

subpoenas duces tecum of the plaintiffs, private third parties

who attack the tax-exempt status of the church.

In the view of the amici this case involves two serious

mistakes on standing. The first standing mistake was the ruling

of the district court that the private respondents (plaintiffs

below) have standing, either as voters? or as members of the

clergy,‘ to challenge the tax-exempt status of a ma jor religious

organization. (See I A. & I B, infra). The second standing

mistake was the ruling of the court of appeals that the

petitioners lack standing as witnesses to challenge the subject

matter jurisdiction of the federal court to enter a compulsory

discovery order massive in scope against a religious body, and

to hold the church in civil contempt for its refusal to comply

with the discovery order. (See II A, in fra).

3 In Abortion Rights Mobilization, Inc. y. Regan, 544 F. Supp. 471

(S.D.N.Y. 1981), [ARM I] the district court rejected the standing of

the plaintiffs to litigate an alleged violation of equal protection on the

ground that they could not identif y any personal injury district from

that of the public generally. Id., 544 F. Supp. at 483. A. 75a-76a.

Notwithstanding this finding, the district court ruled (1) that all the

individual plaintiffs have standing as voters to litigate an alleged

“distortion in the political process” arising from the implementation

of federal tax law, and (2) that the plaintiff exempt organizations

have standing to reprecent their members who are voters. Id. 544 F.

Supp. at 480-482. A. 6¥a-74a.

The district court denied Establishment Clause Standing to the

individual plaintiffs and exempt organizatons, Abortion Rights

Mobilization v. Regan, 544 F. Supp. 471, 478 (S.D.N.Y. 1982) A. 62a-

67a, but ruled that the clergy plaintiffs had Standing under the

Establishment Clause because they had articulated sufficient in jury

by virtue of the alleged “‘denigration” of their religious beliefs and

“frustration” of these plaintiffs’ ministries arising from the “tacit

government endorsement of the Roman Catholic Church view of

abortion,” characterized as governmental “favoritism to a different

theology.” Id., at 479. A. 67a-69a. Finding “‘colorabic” jurisdiction

predicated upon voter standing, the court of appeals declined to rule

on the issue of clergy standing.

A. The District Court Erred in Conferring Standing on

the Private Respondents (Plaintiffs below) to Chal-

lenge the Exempt Status of a Major Religious

Organization on the Grounds that the Plaintiffs are

Either Voters or Members of the Clergy.

Amici agree with the petitioners and the federal respondents

that one reason for granting the writ is that the decisions of the

district court and the court of appeals are flatly inconsistent

with the binding precedents of this Court on standing.” Amici

do not address these concerns directly in this brief , but express

concern that these standing errors have a First Amendment

flavor because of their potentially severe impact on the ability

of religious bodies to communicate their message freely on

matters of public concern. The conferr'sg of standing to

challenge the exempt status of a religious body on private third

parties who are hostile to the teachings of that religious body

represents a serious inroad on the fragile freedoms of all bona

fide religious bodies, irrespective of their convictions on the

particular issue of abortion underlying this case.

Like the instant case, Simon v. Eastern Kentucky Welfare

Rights Org. 426 US. 26 (1976) involved a challenge to the tax-

exempt status of third party organizations. In Simon this Court

refused to find a causal link between a revenue ruling under

I.R.C. § 501(c)(3) and a reduction in services to indigents, and

it ruled that vat is purely speculative whether the denials of

service specified in the complaint fairly could be traced to

petitioners’ encouragement or instead result from decisions

made by the hospitals without regard to the tax implications.

Id. at 42-43. The clear implications of Simon were ignored by

5 See, e.g., Allen v. Wright, 468 U.S. 737 (1984); Valley Forge

Chea College v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464 (1982); Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91 (1979); Simon v. Eastern Kentucky Wel fare

Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975);

United States v. Richardson, 418 U.S. 166 (1972); and Schlesinger v.

Reservists Committee to Stop the War, 418 U.S.A. 208 (1972).

the district court, which conferred standing on the private

respondents (plaintiffs below) because of their status as voters

or as members of the clergy.

(i) Voter standing

In both Simon and Allen v. Wright, 468 U.S. 737 (1984), this

Court established that standing is deficient where a plaintiff

challenging the tax status of a third party fails to focus on the

conduct of the tax-exempt organization. Simon, 426 U:S. at 44-

46; Allen, 468 US. at 757, n. 22. Despite the similarity between

these precedents and the instant case, the district court

conferred standing on the plaintiffs in their capacity as voters,

on the view that they have somehow been disadvantaged by the

federal respondents’ alleged “preferential treatment” of the

church. The fallacious premise for this view appears to be that

taxed contributions translate into less voting power than non-

taxed contributions. This analysis is flawed for two reasons.

First, the plaintiffs have not experienced a cognizable injury in

their capacity as voters that supports a grant of Article III

standing in this capacity. The actual voting power of each

individual plaintiff at the polling place is not in the least

restricted by campaign activities whether conducted by taxed

or tax-exempt organizations. The participation of the plaintiffs

in political life is no less significant than that of other voters,

Baker v. Carr, 369 U.S. 186, 208 (1962), and is not affected by

the granting or revocation of exempt status to the petitioners.

Second, even if it were assumed that plaintiffs had suffered

some palpable injury to their rights of franchise, the injury was

not caused by the actions of the government, as it was in Baker

". Carr, supra, and it is not easily redressable by a court order

revoking the tax-exempt status of the petitioners. As this Court

held in Allen, even if a plaintiff has sustained an injury,

standing is still deficient where “‘the injury alleged is not fairly

traceable to the Government conduct ... challege{d] as

unlawful.” Allen, 468 U.S. at 757. The Allen Court reasoned

that it was “entirely speculative whether withdrawal of the tax

exemption of racially discriminatory schools would have any

impact on the ability of respondents’ children to receive a

desegregated education.” Jd. at 758. Similarly, the injury to the

plaintiffs in the instant case is not traceable to government

conduct, and altering that conduct will not redress the alleged

injury. Plaintiffs’ claimed injury is actually traceable not even

to the petitioners, but to third party taxpayers who choose

voluntarily to make charitable contributions to the petitioners.

The injury claimed is the added influence that the Catholic

church has because of the tax-free money that is available to

spend on campaigns opposing abortion. It is, however, purely

conjectural to believe that taxing these charitable gifts will in

any significant way diminish the influence of that church on

abortion policy in this country. Tie church’s campaign against

abortion is evidently grounded ia sincerely held religious

beliefs. For this reason it is highly doubtful that the church

would decrease its efforts to communicate its teaching on

abortion if the district court were to order the federal

respondents to revoke the petitioners’ tax-exempt status. In

short, the claimed injury to voting rights is not cognizable

injury which is traceable to governmental action or redressable

by a court order.

(ii) Clergy standing

The district court likewise erred in conferring standing on

«the clergy plaintiffs on the view that the protected activity of

the petitioners in exercising rights secured to them under the

Free Exercise Clause and the Free Speech Clause (see Part II

A or this brief, infra) violates the rights of these clergy

plaintiffs secured under the Establishment Clause. This

conclusion is erroneous for three reasons. First, there is “no

principled basis on which to create a hierarchy of

constitutional values. .. . ” Valley Forge Christian College v.

Americans United for Separation of Church and State, 454 US.

464, 484 (1982). Furthermore, “[t]he proposition that all

constitutional provisions are enforceable by any citizen simply

because citizens are the ultimate >eneficiaries of hose

provisions has no boundaries.” Schlesinger v. Reservists

Committee to Stop the War, 418 U.S. 208, 227 (1974).

Second, the plaintiff must show not mere psychological

distress that one’s view of the constitutional order has been

offended, but direct and palpable injury caused by the illegal

conduct of the plaintiff. In Valley Forge the Court held that

the plaintiffs lacked standing because they “fail[ed] to identify

any personal injury suffered by them as a consequence of the

alleged constitutional error, other than the psychological

consequence presumably produced by observation of conduct

with which one disagrees.” Id. at 485. Noting that the

plaintiffs’ grievance was “‘not a direct dollars-and-cents injury

but is a religious difference,” id. at 478, citing Doremus v. Bd.

of Educ., 342 U.S. 429 (1952), the Court concluded that the

case and controversy requirement may not be dispensed with

even ‘“‘when the underlying merits concern the Establishment

Clause.” Id. at 489. As Chief Justice Rehnquist wrote in Valley

Forge: “The federal courts were simply not constituted as

ombudsmen of the general welfare.” Id. at 487.

_ Further support for the proposition that psychological injury

is not enough to sustain a finding of standing may be found in

Allen, 468 U.S. 737 (1984). The Court in Allen denied standing

to black parents who claimed that they suffered “stigmatic”

injury because of the tax-exempt status of segregated private

schools. The Court did not consider stigmatic injury of the sort

complained of here to be personal injury that is traceable to

governmental action or redressable by the court. Jd. at 754-

56.

® Although Allen seems plainly to require the result that the private

respondents lack standing, the district court in Abortion Rights

Mobilization, Inc. v. Regan, 603 F. Supp. 970 (S.D.N.Y. 1985), A. 93a-

102a, expressly declined to modify its earlier -aling on voter and

clergy member standing in the light of Allen, ven to certify the

standing matter for purposes of an interlocu appeal by the

petitioners. The district court's refusal to certify ‘s rulings on this

matter for interlocutory appeal triggered the contem »t proceedings as

the only legal mechanism available to the petitioners o challenge the

The claimed injury to the clergy in the instant case is

indistinguishable from the “psychological” injury found

insufficient to confer standing in Valley Forge and the

“stigmatic” injury «ddressed in Allen. The extent of the

“injury” to these members of the clergy is easy to assert, but

impossible to measure or to trace. It is difficult to imagine how

their ability to minister to their flocks could be affected by the

outcome of this litigation. As the diversity among religious

bodies included among the amici demonstrates, it is empirically

obvious that the moral teaching of various religious bodies on

abortion has not been contingent upon teaching of the Catholic

church on this matter, let alone on the even more attenuated

question of whether that church enjoys tax-exempt status. The

implication to thecontrary in the district court’s ruling in ARM

I merely serves to reemphasize the need for rules of standing

that prevent the use of federal courts for religion-bashing.

Third, the district court erred in assuming that the grant of

tax- exempt status to a religious body constitutes “‘tacit

government endorsement of the Roman Catholic Church view

of abortion,” A. 67a, or “official approval of an orthodoxy.” A.

68a. See Walz v. Tax Commission, 397 U.S. 664 (1970).’ In

discharging the task committed to them by Congress, the

federal respondents have not “denigrated” the religious beliefs

of the plaintiffs who are members of the clergy; nor has the

government in any way “frustrated” the ministry of those

plaintiffs. Although the plaintiffs who are clergy members may

subjectively feel that their beliefs are “denigrated” by the tax-

exempt status of the Catholic church, that is not enough to

jurisdiction of the court to order massive discovery of sensitive

internal church records. See Part II B, infra.

7 Far from requiring that religious organizations would be muffled

because of their exempt status, Walz assumes that they “frequently

take strong positions on public issues.” Jd. at 670. This is true both for

petitioners and for the exempt organizations of which the private

respondents are clergy members. “Pro-life” and “pro-choice” groups

enjoy both exempt status and the right to announce their message to

the public.

establish standing under this Court’s teaching in either Simon

or Allen. As was suggested above with resnect to voter

standing, moreover, it is entirely speculative to conclude, as the

district court did, that the revocation of the tax-exempt status

of a religious body necessarily marks its decline in influence;

this belief ignores the myriad of factors that influence the

moral livelihood of a religious community.

_

B. The Private Respondents Lack Statutory Standing

because Congress has Entrusted the Sensitive Task of

Granting and Revoking the Tax-Exempt Status of

Charitable Organizations not to Private Parties, but to

Federal Respondents.

The standing requirement limits the jurisdiction of federal

courts “‘to those disputes which confine federal courts to a rule

consistent with a system of separated powers and which are

traditionally thought to be capable of resolution through the

judicial process.” Flast v. Cohen, 392 U.S. 83, 97 (1968) The

separation of powers concept imbedded in the standing

doctrine, then, admits of a congressional role in expanding the

role of the courts, within Article III limits, if it chooses to do

so. Far from conferring statutory standing on the plaintiffs in

this lawsuit, however, Congress has given several indications in

the tax code that support the opposite conclusion.? In short,

Red Allen, supra and Simon, supra may not adequately be

distinguished on the basis of Flast, which makes better sense as a

precedent for pure Establishment Clause issues (such as the

permissibility of tax exemptions for rcligious bodies, Walz, supra) than

as a hook for getting at the sensitive internal documents of a religious

body by means of “enforcement” proceedings brought not by the

government, but by hostile third parties.

In the Anti-Injunction Act, Congress prohibited suits to restrain

assessment or collection of any tax, whether brought by a taxpayer or,

as here, a third party. I.R.C. § 7421(a). Congress has delegated the

administration and enforcement of the tax laws exclusively to the

~ecretary and the Commissioner. I.R.C. § 7801(a). In addition,

Congress plainly intended the administration of the code,

including the granting and revocation of exempt status under

§ 501(c)(3), to be within the discretion of the federal

respondents over whom Congress has a great deal of control

through the oversight process, rather than within the boundless

imagination of plaintiffs seeking to enforce their notions of tax

equity in the federal courts. The consequences of the district

court’s view of standing, however, is that it undermines the

express intent of Congress by allowing private parties and the

federal courts to usurp the role of both the legislative and

executive branches, contrary to this Court’s teaching in Valley

Forge that Article III power is “not an unconditioned

authority to determine the constitutionality of legislative or

executive acts.” 454 U.S. at 471. It is likewise clear under

Valley Forge that the plaintiffs do not have “‘license to roam

the country in search of governmental wrongdoing and to

reveal their discoveries in federal court.” 454 U.S. at 487.

For this reason, even when suits to compel the executive

branch to undertake enforcement committed to its discretion

are ‘premised on allegations of several instances of violations

of law, [they] are rarely if ever appropriate for federal-court

adjudication” Allen, 468 U.S. at 759-760. Noting that an

agency decision regarding enforcement proceedings “has long

been regarded as the special province of the Executive Branch,

inasmuch as it is the Executive who is charged by the

Congress gave to the federal respondents the power to ‘prescribe all

needful rules and regulations for the enforcement of" those laws.

LR.C. § 7805(a). And Congress reserved for itself the task of

overseeing the enforcement of the revenue laws by creating a Joint

Committee on Taxation to investigate the administration, operation,

aid effects of the tax system. I.R.C. § § 8001-8023. These provisions

reflect congressional intent to operate the tux system within the

legislative and executive branches. Congress, moreover, has expressly

mandated that the IRS maintain the confidentiality of tax records,

I.R.C. § 6103; and out of concern for the delicate character of

religious freedom, Congress has expressly limited the power of the

IRS to conduct audits of church bodies. I.R.C.§ 7605(c).

—

Constitution to ‘take Care that the Laws be faithfully

executed.’ U.S. Const., art. II, § 3,” Heckler v. Chaney, 470 U.S.

821, 832 (1985), this Court has emphasized that executive

agency decisions not to enforce are characteristically unsuit-

able for judicial resolution because this discretionary choice

“often involves a complicated balancing of a number of factors

which are peculiarly within its expertise.” Id., 470 U.S. at 831.

In the instant case this principle demands reversal of the

district court’s ruling on standing which removes from the

federal respondents delicate IRS decisions that must take into

account the protections of the First Amendment and hands

them over to litigants who have not shown “a direct dollars-

and-cents injury, but [only] a religious difference,” Valley

Forge, 454 US. at 478. The likelihood that disgruntled third

parties will be sensitive to the free speech and free exercise

concerns of non-profit organizatons they oppose is slim. The

probability that religious organizations will become the target

of third parties hostile to their religious perspective is high.!°

'0 The standing rule adopted by the district court would do little to

safeguard the core meaning of the Establishment Clause, and could

easily open up the floodgates to litigation against churches by those

hostile to their mission or ideas. See, e.g., Khalaf v. Regan, 85-1 US.

Tax Case 1 9269 (D.D.C. 1983) (dismissing on standing principles

effort of anti-Zionist organization to revoke exempt status of Jewish

charitable organizations because of their support of Israel); American

Society of Travel Agents, Inc. v. Blumenthal, 566 F.2d 145 (D.C. Cir.

1977), cert. denied, 435 U.S. 947 (1978) (dismissing on standing

principles attack on exempt status of American Jewish Congress by

business competitors). The potential for mischief of this sort,

moreover, is not limited to religious not-for-profit organizations, but

could readily affect exempt charitable organizations which are

secular in character. For example, a member of the Ku Klux Klan

who is a registered voter could hypothetically sue the Secretary of the

Treasury to revoke the exempt status of the NAACP if the civil

rights education fund were to participate in voter education deemed

impermissible under the restrictive regulations in Rev. Rul. 78-248

(construing § 50l(c)(3) to prohibit distribution of accurate

information to voters if the voter guide focuses on a single issuc such

as land conservation). Similarly, opponents and proponents of gun

| on

Even if such suits are eventually decided on the merits in favor

of the religious body attacked by private parties in the court,

significant harm to religious freedom may result, as this record

illustrates, from subjecting the religious body to inquiries

which violate the legitimate autonomy of the religious body.

(See II B, infra) At the very least such intrusions cannot be

justified on the basis of protecting litigants whose tax liability

is not even affected. Fot these reasons, this Court should grant

the writ in order to reverse the district court’s erroneous ruling

on standing.

Il

THIS COURT SHOULD GRANT THE WRIT BE-

CAUSE THE DECISION OF THE COURT OF

APPEALS UNDERMINED THE ABILITY OF A

MAJOR RELIGIOUS ORGANIZATION TO CHAIL-

LENGE THE POWER OF A FEDERAL COURT TO

IMPOSE SUBSTANTIAL FINES ON THE CHURCH

FOR ITS REFUSAL TO HAND OVER EXTENSIVE

INTERNAL DOCUMENTS RELATING TO PASTO-

RAL PLANS TO ENGAGE IN CONSTITUTIONALLY

PROTECTED ACTIVITY THROUGH MORAL ADVO-

CACY ON MATTERS OF PUBLIC CONCERN PRE-

SENTED TO THE ELECTORATE FOR THEIR

DELIBERATON AND DECISION.

control could use the courts rather than the halls of Congress and

other legislative chambers to carry on their debates. Even if their

suits were ultimately dismissed on the merits, they would have

succeeded in obtaining valuable information about their opponents

that would otherwise be unavailable to them.

=,

A. Where a Major Religious Body was Held in Civil

Contempt as a Witness in Exemption-Revocation

Proceedings Initiated by Outsiders Hostile to its

Message on a Matter of Public Concern, the Court of

Appeals Erred in Denying the Church Standing to

Challenge the Underlying Jurisdiction of the District

Court to Order Discovery of Sensitive Internal

Documents, on the View that “Colorable” Jurisdiction

Suffices to Postpone Consideration of the Church’s

Jurisdictional Challenge until the Requested Discov-

ery of the Church’s Records is Completed and the

Underlying Action to Revoke the Tax-Exempt Status

of the Church is Decided on the Merits.

The second standing mistake was the ruling of the court of

appeals that the petitioners lack standing as witnesses to

challenge the subject matter jurisdiction of the federal court to

enter a compulsory discovery order against a religious body,

and to hold the church in civil contempt for its refusal to

comply with the discovery order. In re United States Catholic

Conference, 824 F. 2d 156 (2d Cir. 1987). A 1a-43a.!! In

reaching this result, the court of appeals virtually ignored the

recent teaching of this Court in Bender v. Williamsport Area

School Dist., 475 U.S. 534, 106 S.Ct. 1326 (1986), that “every

federal appellate court has a special obligation to ‘satisfy itself

not only of its own jurisdiction, but also that of the lower

courts in a cause under review ....’” 106 S.Ct. at 1331

(emphasis added). Thinking that this rule is inapplicable to

interlocutory appeals, the court of appeals devised a new rule

of standing, according to which the petitioners’ challenge to

the power of the district court to order massive discovery of

the sensitive internal documents of a major religious body and

_'' On this record it is plain that subjecting itself to a civil contempt

citation was the only available legal mechanism to seek appellate

review of the first standing mistake ‘“‘before undertaking any burden

of compliance with the subpoena.” United States v. Ryan, 402 US.

530, 533 (1971). See note 6 supra.

—)

to hold it in contempt for failure to comply with this request

must fail if the appellate tribunal finds a modicum of

“colorable” jurisdiction in the lower court. The court of

appeals justified this conclusion by extensive reliance on Blair

v. United States, 250 US. 273 (1919), a case involving a

challenge to the authority of the grand jury in a criminal

investigation. Amici intimate no view as to whether the Blair

rule is still required to serve the governmental interest in

efficient administration of criminal justice. Amici urge,

however, that it makes little sense to extend the rule into an

undifferentiated power of private plaintiffs over religious

bodies in a civil suit, especially where the government does not

assert the interest at issue in Blair.'

Even if this case were a criminal prosecution of a bogus

“church,” the normal rule for the judiciary would be to defer

to the discretion of the executive in conducting the

prosecution. See, e.g., United States v. Cox, 342 F. 2d 167 ( Sth

Cir. (1965) (en banc), cert. denied, 381 U.S. 935 (1965)). But

this is not a case in which the government is aligned againt a

religious body because of an alleged violation of the tax code.

See, e.g., Bob Jones University v. United States, 461 U.S. 574

(1983). It is a case in which private parties seek to use the

federal courts to inflict a penalty on a major religious body for

the evident reason that they disagree wih the moral teaching of

that church on a controversial matter of public concern. Under

these circumstances and in the light of Heckler v. Chaney,

supra, this case is hardly an apt vehicle for extending the reach

of the Blair rule to religious bodies which choose to speak out

on matters of conscience which are controversial in nature.

12 In this case the federal respondents agree with the petitioners

that the district court lacks subject matter jurisdiction. Indeed, the

government has sought review of this very issue in the court of

appeals and this Court on repeated occasions. See, e.g., Briefs of the

United States in Nos. 86-157 and 86-162.

—

B. The Ability of a Religious Organization to Engage in

Protected Activity is Severely Chilled when Federal

Courts Impose Substantial Penalties on the Church for

Failure to Comply with unduly Burdensome and

Overbroad Subpoenas Seeking Extensive Discovery of

Internal Records of the Pastoral P!ans of the Church

(i) Communicating sincerely held religious convic-

tions on matters of public concern is protected

activity.

Amici do not claim that when religious organizations choose

to “enter a public forum and spread their view,” Heffron v.

ISKCON, 452 U.S. 640, 653 (1981), they are always entitled to

protection greater than that enjoyed by non-religious social or

political organizations. By the same token, however, religious

bodies are surely entitled at the very least to no lesser degree of

protection than that enjoyed by their secular counterparts. See,

e.g., McDaniel v. Paty, 435 U S. 618, 640 (1978) (Brennan, J.,

concurring). It is likewise clear that special concerns of

religious autonomy and integrity arise when the government

seeks to regulate a religious body which are not present when it

seeks to regulate a secular organization. See, e.g., Corp. of

Presiding Bishop v. Amos, 480 U.S. __, 107 S.Ct. 2862, 2871

(1987) (Brennan, J. concurring); Wisconsin v. Yoder, 406 US.

205 (1972). And see Laycock, “Towards a General Theory of

the Religion Clauses,” 81 Colum. L. Rev. 1373 (1981).

Amici are of the view that restrictions on the political

speech of religious organizations in § 501(c)(3) are deficient

because they are by no means the alternative least restrictive of

their rights secured under the Religion Clause and the Free

Speech Clause. Indeed, it is difficult to imagine a restriction

more total than the ‘absolute prohibition” on any participation

by a 501(c)(3) organization in a political campaign whether on

behalf of or in opposition to a candidate for public office. See,

e.g. IRS Exempt Organizations Handbook (IRM 7751)

§ 3(10)1; and see Treas. Reg. § 1.501(c)(3)-1(c)(3)(iii). It is

_—

likewise hard to imagine that IRS rulings virtually prohibiting

voter education efforts by exempt organizations on topics of

concern to the organization, see, e.g., Rev. Rul. 78-160, 1978-1

C.B. 153, revised by Rev. Rul. 78-248, 1978-1 C.B. 1545, and

Rev, Rul. 80-282, 1980-2 C.B. 178, would pass muster in

judicial review that took seriously the mandate of New York

Times v. Sullivan, 376 U.S. 254 (1964), that debate on issues of

public concern must be “uninhibited, robust, and wite-open.”

Id. at 270. See generally, Caron and Dessinque, “I.R.C.

§ 501(c)(3): Practical and Constitutional Implications of

‘Political’ Activity Restrictions,” 2 J. of L. and Politics 169

(1985) and literature cited id. at 180, n. 40, at 181, n.4i, and at

183 u. 54.

In another case before this Court during this Term amici

have expressed their views that the Religion and Free Speech

Clauses afford substantial protection against extensive

governmental regulation of a religious body which chooses to

announce sincerely held religious beliefs that relate directly to

matters of public concern. See Amicus Brief of Baptist Joint

Committee on Public Affairs in Bemis Pentecostal Church v.

State, app. pending, No. 87-317. Without repeating those

arguments here, amici note that public communication of

sincerely held religious convictions on matters of public

concern is protected activity.!? For example, amici and the

representatives of a host of other denominations and religious

bodies are called upon regularly to express the views of

religious groups on a wide variety of social and political issues

with pressing ethical components. In testimony before the

House Ways and Means Committee in 1972, Dr. J. Elliott

Corbett of the United Methodist Church entered into the

record of these hearings a policy declaraton of his church

'3 Since this is true for religious groups on both sides of the

abortion issue, it was error to confer standing on clergy members on

the view that the exempt status of the petitioners somehow

“frustrated” their ministry.

pom ee

which bespeaks the impossibility of any total severance of

religion and politics in our society:

“We believe that churches have the right and the

duty to speak and act corporately on those matters

of public policy which involve basic moral or ethical

issues and questions. Any concept of church-

government relations which denies churches this role

in the body politic strikes at the very core of the

religious liberty. The attempt to influence the

formation and execution of effective means available

to churches to keep before modern man the ideal of a

society in which power [is] made to serve the ends of

justice and freedom for all people.” Legislative

Activity By Certain Types of Exempt Organizations,

Hearings Before the House Ways and Means

Committee, 92d Cong., 2d Sess. at 303, 305 (1972).

See also, Influencing Legislation by Public Charities,

Hearing Before the House Ways and Means

Committee 94th Cong., 2d Sess. (1976).

(ii) The scope of requested discovery is overbroad.

The means selected by the plaintiffs to achieve their goal in

the instant litigation includes sweeping discovery requests that

threaten the impairment of the integrity and autonomy of

religious bodies. The standing issue is intimately connected

with the threat to religious autonomy posed by the discovery

requests, for a court without jurisdiction over the subject

matter clearly lacks authority to enforce subpoenas for

production of documents, whether the subpoenas are narrow

or broad. Amici are particularly troubled that this case might

turn into an inadvertent precedent damaging the autonomy of

religious bodies. Hence amici urge this Court to focus

particular attention on the intrusive character of the

excessively broad discovery requests in the instant case and the

potiential chilling effect that granting such requests entails for

similarly situated religious bodies.

a a

Even if the district court had jurisdiction over the subject

matter, the district court nonetheless erred in ordering massive

compulsory production of internal church documents to a

private third party and extensive depositions of church

officials and employees.!4

In the view of amici, the plaintiffs’ discovery requests are

seriously intrusive upon the autonomy and integrity of

religious bodies. In the process of attempting to prove their

case on the merits, attorneys for the piaintiffs have proceeded

against the petitioners with discovery requests that seek to

examine in depth and in great detail virtually all significant

relationships between Roman Catholic institutions at all levels

and the entire political process. The subpoenas duces tecum

addressed to the petitioners demand production of voluminous

material including internal church discussions regarding the

formulation and implementation of the Catholic Bishops’

position on one of the vexing and fundamental religious and

political issues of our time, abortion.

If this Court sustains these subpoenas, the impact of this

decision on the amici and similarly situated religious bodies

could be staggering, for there would be no principled way to

differentiate between the plaintiffs in the instant case and

Opponents suing the government to secure a judicial order

revoking the tax-exempt status of another religious body

because of that body’s political involvement on any number of

the other issues designated by the Catholic Bishops as “‘pro-

life” matters (e.g., nuclear war, capital punishment, adequate

health care, foreign policy and immigration policies relating to

Latin America or South Africa). Once such a plaintiff hostile

to a church’s moral teaching on any one of these themes had

commenced an action like the instant case, the door would be

wide open to dissipate the resources of a not-for-profit

'4 For a description of the subpoenas, see Petition for Certiorari, at

6-7. A more extensive and detailed description of the subpoenas, with

references to the pages in the Appendix below, is found in the

Appellants’ Brief before the court of appeals, pp. 9-12.

—"

corporation dedicated exclusively to religious purposes.

Whatever may be said of the permissibility of the restraints on

political speech contained in I.R.C. § 501(c)(3), Congress

surely never contemplated nor intended the result of costly

litigation against religious bodies initiated by private third

parties.

This Court, however, need not support the district court’s

order for such broad discovery against a non-party, for the

plaintiffs’ discovery rights are predicated upon the ground that

its claims are not without merit. See, e.g., Blue Chip Stamps v.

Manor Drug Stores, 421 U.S. 723 (1975). Federal courts have

denied discovery altogether where no proof of facts in support

of a claim would entitle the party seeking discovery to relief.

See, e.g., Westminster Investing Corp. v. G.C. Murphy Co. 434

F.2d 521 (D.C. Cir. 1970). Plaintiffs ground their cause of

action: (a) on the view that as members of the clergy their

religious convictions have been “denigrated” by an official

policy of preferential treatment of the petitioners over other

religious bodies who disagree with the petitioners on the issue

of abortion, and (b) on the view that as registered voters they

have suffered a diminution of the strength of their franchise

because of alleged governmental “subsidy” of the petitioners.

As was argued above, neither of these claimed bases for

Standing is significantly different from the bases asserted by

the plaintiffs in Allen v. Wright, 468 U.S. 737 (1984).

Furthermore, the interest of the plaintiffs in securing access to

documents which could lead to discovery of relevant evidence

must be shown to be greater than the legitimate First

Amendment interests of the non-parties against whom

discovery is sought. See, e.g., Zerilli v. Smith, 656 F.2d 705

(D.C. Cir. 1981) (discovery of confidential news sources

favored where a journalist is a party and is disfavored where he

is not a party). Obviously greater protection should be afforded

to a non-party, where the discovery excessively burdens

delicate First Amendment rights that need “breathing space.”

NAACP v. Button, 371 U.S. 415 (1963). For these reasons, the

legal predicate underlying the plaintiffs’ discovery requests is

seriously flawed, and their subpoenas should not be enforced.

—_—" =

(iii) The penalties imposed on the petitioners are

excessive because certification is an equally

effective alternative less restrictive of religious

autonomy.

It is well settled that religious bodies are afforded additional

constitutional protection precisely because of t=zir religious

character. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972). The

freedom of religious bodies to address many vexing social

problems from a religious perspective should not be

conditioned upon their compliance with overbroad and

intrusive discovery orders. Nor should religious bodies be

subjected to excessive sanctions for seeking appellate review of

the underlying power of the court to isssue such orders, unless

the government can demonstate that it has utilized the least

restrictive means of acieving a truly compelling governmental

interest. Hobbie v. Unemployment Appeals Commission, 480

U.S. __, 107 S.Ct. 1046, 1094 (1987); Thomas v. Review Board,

450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963).

In the instant case, the district court plainly had such an

alternative readily available. All of the painful confrontation

between the judiciary and a major religious body over the past

year and a half could have been avoided by certifying the

ruling on standing for purposes of interlocutory appeal under

28 U.S.C. § 1292(b). Where the delicate issue of religious

freedom hangs in the balance, the refusal of the district court

to certify this standing ruling, even after the plain teaching of

this court in Allen, constitutes an abuse of discretion so

significant that this Court should grant the writ in order to

reverse the district court on this matter.

The permissibility of the contempt citation imposed upon

the petitioners under the facts in this case and under free

exercise standards is adequately preserved on this record, but

this Court may likewise avoid a decision on this issue by

focusing on the standing questions. In the event that this court

elects this path, amici urge this Court to make plain that the

imposition of coercive fines of the magnitude in this case is a

naling,

reserved question, and to refrain from any dicta that would

serve to diminish the legitimate autonomy of religious bodies

by expanding judicial power over these bodies where less

restrictive alternatives (e.g., certification of the ruling on the

standing of the plaintiffs for an interlocutory appeal) would

serve any interest which may be asserted on behalf of orderly

administration of justice and would obviate inquiry into

whether the interest protected by the contempt order in this

case was truly “compelling.”

CONCLUSION

For the reasons sei forth in this brief, amici urge this court

to grant the writ of certiorari sought by the petitioners and the

federal respondents and to reverse the judgment of the court of

appeals denying standing to the church witness to challenge the

jurisdiction of the federal courts to entertain lawsuits by

private parties opposed to the social message of the petitioners.

Amici likewise urge this court to correct the error of the

district court in ARM I that any of the plaintiffs have

standing.

In the view cf the arm .i the burden of compliance with the

district court’s order of massive discovery of sensitive internal

church records likewise constitutes a grave threat to the

legitimate autonomy of religious bodies in our constitutional

order. In the event that this court decides to limit the grant of

the writ exclusively to the standing issues, amici urge this

Court to make plain that it has reserved the issues of the

permissible scope of compulsory civil discovery of the internal

records of a religious body, and of the imposition of substantial

penalties on a religious body where a less restrictive alternative

is available.

Respectfully submittted,

EDWARD McGLYNN GAFFNEY, JR.

Counsel of Record

Associate Professor of Law

Loyola Law School

1441 West Olympic Blvd.

Los Angeles, CA 90015

(213) 736-1157

Of Counsel:

DOUGLAS LAYCOCK

A. Dalton Cross Professor at Law

University of Texas Law School

727 East 26th Street

Austin, TX 78705

(512) 471-3275

NOTE: The attorneys for amici curiae wish to express their

appreciation and gratitude to Lynn Johnson, J.D. Cand. 1988,

Loyola Law School, and William T. Gillespie, J.D. Cand. 1988,

Loyola Law School, for their valuable assistance in the

preparation of this brief.

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of the

County of Los Angeles, over the age of eighteen (1 8) years and

not a party to the within action or proceeding; that my business

address is 10835 Santa Monica Boulevard, Los Angeles,

California 90025; that on October 22, 1987, I served the within

Motion For Leave To File Brief Amicus Curiae and Brief

Amicus Curiae in said action or proceeding by depositing true

copies thereof, enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States mail at Los Angeles,

California, addressed as follows:

Clerk, United States The Hon. Charles Fried

Supreme Court Office of the Solicitor General

One First Street, N.E. Department of Justice

Washington, D.C. 20543 Room 5614

(Original + 40 Copies) Sh & Pennsylvania Ave., N.W

Washington, D. C. 20530

Charles H. Wilson, Esq. (3 Copies)

Williams & Connolly

839 Seventeenth Ave., N.W. Marshall Biel, Esq.

Washington, D.C. 20006 19 W. 44th Street

(3 Copies) New York, N.Y. 10036

(3 Copies)

I declare under penalty of perjury that the foregoing is true

and correct. Executed on October 22, 1987, at Los Angeles,

California.

James D. Jones

(Original signed)