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

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No. 87-416

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES CATHOLIC CONFERENCE

and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

. Petitioners,

ABORTION RIGHTS MOBILIZATION, INC., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR PETITIONERS

EDWARD BENNETT WILLIAMS

KEVIN T. BAINE *

RICHARD S. HOFFMAN

KEVIN J. HASSON

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

MARK E. CHOPKO

General Counsel

PHILLIP H. HARRIS

Solicitor

Of Counsel: United States Catholic

WILLIAMS & CONNOLLY Conference

839 17th Street, N.W.

| 1312 Mass. Ave., N.W.

Washington, D.C. 20006 Washington, D.C. 20005

(202) 331-5000 (202) 659-6690

* Counsel of Record Counsel for Petitioners

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether in the absence of a case or controversy

under Article III, a district court nevertheless has judi-

cial power to issue a subpoena and compel compliance

through civil contempt.

2. Whether opponents of the Roman Catholic Church’s

position on abortion have standing under Article III of

the Constitution to challenge the tax-exempt status of the

Catholic Church.

{i)

PARTIES TO THE PROCEEDING

Lewrence Lader, Margaret O. Strahl, M.D., Helen W.

Edey, M.D., Ruth P. Smith, National Women’s Health

Network, Inc., Long Island National Organization for

Women-Nassau, Inc., Rabbi Israel Margolies, Reverend

Bea Blair, Rabbi Balfour Brickner, Reverend Robert

Hare, Reverend Marvin G. Lutz, Women’s Center for

Reproductive Health, Jennie Rose Lifrieri, Eileen

Walsh, Patricia Sullivan Luciano, Marcella Michalski,

Chris Niebrzydowski, Judith A. Seibel, Karen DeCrow

and Susan Sherer are also plaintiffs in the district court

and respondents here. Secretary of the Treasury James

A. Baker, III, and Commissioner of Internal Revenue

Lawrence B. Gibbs are defendants in the district court

and respondents here.*

* Pursuant to Rule 28.1, petitioner United States Catholic Con-

ference states that it has no parent, affiliate or subsidiary corpora-

tions other than wholly-owned subsidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED .......00222..o eee

PARTIES TO THE PROCEEDING ....0 0...

AE =a

B. The Motions To Dismiss .......................... ‘ae

Neen ee nnn. cnanscenenscenecece

a, Gemeememe Proceegings ............................................

E. USCC/NCCB’s Appeal ........................... Sinaoses cae

SUMMARY OF ARGUMENT ........00.

I sctecictecnssescessacscaseee- SE iiineliiddashinavvesascccnneses

I. USCC/NCCB MAY CHALLENGE THE

COURT’S ARTICLE III POWER ican

A. A Court Without Article III Power Cannot

Issue A Subpoena Or Coerce Compliance

Through Civil Contempt ............00000000.....

1. The Subpoena Power and Civil Contempt

Power Are Subject to Article III... ...

2. A “Colorable” Claim of Article III Power

Is Insufficient to Support the Issuance of

The Subpoenas and Civil Contempt Order

Nee cepesusescecesce

TABLE OF CONTENTS—Continued

B. USCC/NCCB Are Not Precluded From Chal-

lenging The Court’s Article III Power ..........

1. “Standing” Is Not Necessary To Point

Out the Court’s Lack of Article III

i a

USCC/NCCB Have “Standing” To Point

Out the Court’s Lack of Article III

IE =i. iii cceccecticisenaaniastuadeamimeneiiiae nine

3. The Court of Appeals Misread Blair v.

EE TIMID cisvudsahiacsembeceasinnaisubdaniaddandion

Il. THE DISTRICT COURT WAS WITHOUT

ARTICLE III POWER BECAUSE THE

PLAINTIFFS LACKED ARTICLE III STAND-

GUTTET . ~.secsust-calidavemnennieasscenaeniniataiiatiaaueniemmmadaniiae

A. Unaffected Third Parties Lack Article III

Standing To Challenge the Tax-Exempt

I WI I re ceetcineiscenate eee

B. The Clergy Plaintiffs Lack ‘Establishment

I SE iccnterencrtenonas. ak SE Pe

C. Plaintiffs Have No “Voter Standing” ..........

1. Plaintiffs Have Suffered No Cognizable

Bb Fe ceiitisiedsietnn

Plaintiffs’ Claimed Injury Is Neither

Fairly Traceable to the IRS Nor Likely

To Be Redressed by the Requested Relief..

D. The Doctrine Of Separation Of Powers And

Related Prudential Concerns Preclude Stand-

Page

TABLE OF AUTHORITIES

Cases: Page

Abington School District v. Schempp, 374 U.S.

BE ee a an ogee, 11, 34

Alexander v. United States, 201 U.S. 117 (1906)... 16, 23

Allen v. Wright, 468 U.S. 737 (1984) ......000000000....... passim

American Society of Travel Agents Vv. Blumenthal,

566 F.2d 145 (D.C. Cir. 1977), cert. denied, 435

SS NE eI ccd seoninkddnbidishnscensehiceicscacecnoncteabs 38

Baker v. Carr, 369 U.S. 186 (1962) noe EET MEX 11, 36

Bender v. Williamsport Area School District, 475

Sf 2 FAR awe tae ee 9, 10, 21, 22

Bingler v. Johnson, 394 U.S. 741 (1969) 0... A5

Blair v. United States, 250 U.S. 273 (1919) _...... 8, 25, 26

Blocksom & Co. Vv. Marshall, 582 F.2d 1122 (7th

2 eR RE a ee ne ee Oe | 16

Bob Jones University v. Simon, 416 U.S. 725

ee a 44

Cobbledick v. United States, 309 U.S. 323 (1940)... 19, 23

Davis v. Bandemer, 106 S. Ct. 2797 (1986)... 36

DiGirlomo v. United States, 520 F.2d 372 (&th

Cir.), cert. denied, 423 U.S. 1033 (1975)... 26

Ex parte Fisk, 113 U.S. 713 (1885) ........................ 15, 16

Ex parte Levitt, 302 U.S. 633 (1937) _.......... RS 28

Ex parte Rowland, 104 U.S. 604 (1882)... 15

Fairchild v. Hughes, 258 U.S. 126 (1922)... 28

Gompers V. Bucks Stove & Range Co., 221 U.S. 418

I Sha Eh el a waakeaeds 15, 16

Heckler v. Chaney, 470 U. S. 821 (1985) ....... 42, 45

Hodel vy. Irving, 107 S.Ct. 2076 (1987)... 22, 28

Howat v. Kansas, 258 U.S. 181 (1922) 19

In re Baker, 788 F.2d 3 (2d Cir. 1986)... 7

In re Burrus, 136 U.S. 586 (1890) ba 16

In re Green, 369 U.S. 689 (1962) ................0o... 19

In re Perlin, 589 F.2d 260 (7th Cir. 1978) 26

In re Sealed Case, 827 F.2d 776 (D.C. Cir. 1987) 26

In re Sawyer, 124 U.S. 200 (1888) ..............00000..0..... 16

In re Sequoia Auto Brokers, Ltd., 827 F.2d 1281

(9th Cir. 1987) ....... feed a8 FO BPI pe ee 16

In re Subpoena of Persico, 522 F.2d 41 (24 Cir.

Se CRE: 2S RNR Ro a pres Oe ON aN am 26

TABLE OF AUTHORITIES—Continued

Page

ITT Community Development Corp. Vv. Barton, 569

if BB Earp seee ana eece pan 16

Juidice v. Vail, 430 U.S. 327 (1977) ...................... c 22

Karcher v. Daggett, 462 U.S. 725 (1983) ............. 36

Khalaf v. Regan, 85-1 U.S. Tax Cases ‘ 9269

(D.D.C. 1985), aff’d, No. 83-02963 (D.C. Cir.

Sept. 19, 1986) (unpublished opinion) ............. 38

Laird ¥V. Tatum, 406 US. 1 (1078) ........................... AT

Linda R.S. v. Richard D., 410 U.S. 614 (19753) ...40, 41, 43

Maness v. Meyers, 419 U.S. 449 (1975) 0... 20, 23

Mensfield C. & L.M.R. Co. v. Swan, 111 U.S. 379

(a APT lie ade lane Seh apts 2682 NE oe le 22

McCrone v. United States, 307 U.S. 61 (1939)... 14,18

McDaniel v. Paty, 425 U.S. 618 (1978) oceans 24

Mitchell v. Maurer, 293 U.S. 237 (1934) .........000..... 21

NAACP vy. Alabama, 357 U.S. 449 (1958)... cera 24

National Muffier Dealers Ass’n Vv. United States,

440 U.S. 472 (1979) _. aed ae eetl M5

Penfield Co. v. SEC, 330 U.S 585 (1947) . es 14

Schlesinger V. Reservists SomnBiee to Stop the

War, 418 U.S. 208 (1974) ......................11, 28, 31, 37, 42

Simon Vv. Eastern Kentucky Welfare Rights Or-

ganization, 426 U.S. 26 (1976)..10, 29, 30, 39, 10, 41, 44

United States v. Bisceglia, 420 U.S. 141 (1975)... 14, 25

United States v. Corrick, 298 U.S. 435 (1936)... 22

United States v. Powell, 379 U.S. 48 (1964) . 14, 25

United States v. Morton Salt Co., 338 ve. 632

(1950) sasiuensieaainadedaiepeehatsnbentiaaseadbiadetiacteetas 3, 9, 14, 18, 25

United States v. Richardson, 418 U.S. 166 (197 1). 28

United States v. Ryan, 402 U.S. 530 (1971)... 19, 23

United States v. Saylor, 322 U.S. 385 (1944)... 36

United States v. SCRAP, 412 U.S. 669 (1973)... 28, 35

United States v. Shipp, 203 U.S. 563 (1906)..10, 17, 19

United States v. Thompson, 319 F.2d 665 (2d Cir.

a RR TES RUS tit NAS Ne ks Se lie Ri Pd RC 17

United States v. United Bins Ww wrhuve. 330 US.

EI ens ae age! 10, 16, 18, 28

vii

TABLE OF AUTHORITIES—Continued

Page

Valley Forge Christian College v. Americans

United for Separation of Church and State, 454

U.S. 464 (1982) ......... 11, 12, 28, 30, 31, 34, 35, 37, 38, 42

Walker v. City of Birmingham, 388 U.S. 307

(REELED UI, NEES MEER 2 AD arth eR a nae 19

Walz v. Tax Commission, 397 U.S. 664 (1970)... a

Warth v. Seldin, 422 U.S. 490 (1975) .......... 28, 29, 37, 40

Wiley v. Sinkler, 179 U.S. 58 (1900) eo 36

Winpisinger V. Watson, 628 F.2d 133, cert. denied,

I I I ce 40

United States Constitution:

pO ee 37

Article IT, Section 3 eran bes 42

Article III, Section 2 ...................... Sinan i Lecceeeeeee-e--. passim

Pies RESONe...........-..-............--. Paes 24, 45

Statutes, Regulations and Rules:

sie ek) AT biog REC EEE tare ad M5

26 U.S.C. § 501 (ce) (3) . | Oat passim

26 U.S.C. §§ 6212-13 ......... Ea Al ies ek ES oi 13

26 U.S.C. § 6532 Cr hes 13

26 U.S.C. § 7421 (a) ....... Teor Etre | 14

26 U.S.C. § 7422 2 a Tiney we? AD

Be re ED oc cens nce ecdenceseseces 27, 42, 43

ne cahecpinniles leseceeeed4ey 45, 46

26 U.S.C. § 7801 (a) 3

ik foe SS) ae 43

26 U.S.C. §§ 8001-8023 . at 43

gee ek) |) he 2

28 U.S.C. § 1292 (b) my

28 U.S.C. § 1346. AS

28 U.S.C. § 2201. AS

Pub. L. 100-202 . on . A

26 C.F.R. § 1.501 (c) (3)-1 (1987).......000000-..... 5 14

Fed.R.Civ.P. 12(¢h) (3) es nate arin b beh coamhenthe ences 21

2 he en . 14

Rev. Ruling 78-248, 1978-1 C RB. 154 44

Rev. Ruling 80-282, 1980-2 C.B. 178.00... 14

viii

TABLE OF AUTHORITIES—Continued

Legislative Materials:

Subcommittee on Oversight of the Committee on

Ways and Means, U.S. House of Representa-

tives, 100th Cong., Ist Sess., Report and Rec-

ommendations on Lobbying and Political Ac-

tivities by Tax-Exempt Organizations (Comm.

I I ne eeneniealaen sete RON

H.R. Conf. Rep. No. 861, 98th Cong., 2d Sess.

ARTESIA Ae e SEN RC ee a a

Miscellaneous:

The Official Catholic Directory (A987) —................

Political Responsibility: Choices for the Future,

A Statement of the Administrative Board of the

United States Catholic Conference (September

RE SR ere ie pee al earns TO Par eno

Page

24, 45

IN THE

Siypwreme Court of the United States

OCTOBER TERM, 1987

No. 87-416

UNITED STATES CATHOLIC CONFERENCE

and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

‘ Petitioners,

ABORTION RIGHTS MOBILIZATION, INC., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals is reported at 824

F.2d 156. The May 8, 1986 opinion of the district court

holding petitioners in civil contempt is reported at 110

F.R.D. 337. The May 9, 1986 order of the district court

amending its contempt citation is unreported. Earlier

opinions of the district court denying the motions to dis-

miss are reported at 603 F. Supp. 970 and 544 F. Supp.

471.

JURISDICTION

The judgment of the court of appeals affirming the dis-

trict court’s contempt order was entered on June 4,

1987. A timely petition for rehearing, with suggestion

for rehearing en banc, was denied on July 30, 1987. The

petition for a writ of certiorari was filed on September

11, 1987, and granted on December 7, 1987. This Court

has jurisdiction under 28 U.S.C. 1254/1).

CONSTITUTIONAL PROVISION INVOLVED

Article III, Section 2 of the Constitution provides:

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or

which shall be made, under their Authority;—to all

Cases affecting Ambassadors, other public Ministers

and Consuls;—to all Cases of admiralty and mari-

time Jurisdiction;—to Controversies to which the

United States shall be a party;—to Controversies

between two or more States;—between a State and

Citizens of another State;—between Citizens of dif-

ferent States;—between Citizens of the same State

claiming Lands under Grants of different States,

and between a State, or the Citizens thereof, and for-

eign States, Citizens or Subjects.

STATEMENT OF THE CASE

The plaintiffs in this case, Abortion Rights Mobiliza-

tion, Inc. (“ARM”) and otners, seek a judicial order re-

voking the tax exemptions of approximately 30,000 Roman

Catholic Church entities throughout the United States,

on the purported ground that some or all of those en-

tities have engaged in impermissible political activities.

The affected Church entities, all of whom are covered by

an annual group exemption letter, include not only the

petitioners, the United States Catholic Conference and

the National Conference of Catholic Bishops (“USCC

NCCB”), but also Catholic dioceses, parishes, elementary

and high schools, colleges, seminaries, hospitals, homes

for the aged or infirm, orphanages, counseling centers,

monasteries, retreat houses, refugee assistance groups

and the like.’

In pursuit of discovery on the merits, the plaintiffs

served subpoenas duces tecum upon USCC, NCCB, dis-

tinct organizations with ideniical memberships consisting

of all active Roman Catholic bishops in the United States.

USCC/NCCB moved to quash the subpoenas on the

ground, among others, that the plaintiffs lacked Article

III standing to bring the suit and the court therefore

lacked Article II] power to issue or enforce the sub-

poenas. The district court denied the motion to quash

and subsequently held USCC, NCCB in civil contempt. A

divided panel of the Court of Appeals for the Second

Circuit affirmed without deciding whether the plaintiffs

had standing. The panel majority held that USCC NCCB

themselves were without “standing” to challenge the

court’s Article I{I power.

A. The Complaint

The amended complaint was filed on behalf of nine

organizations and 20 individuals against the Secretary

of the Treasury, the Commissioner of Internal Revenue,

and USCC NCCB. Three of the group plaintiffs are tax-

exempt organizations that advocate the continuation of

legalized abortion. The other six are health clinics that

perform abortions. The individual plaintiffs are clergy-

men and voters who oppose the Roman Catholic Church’s

religious teaching on abortion. None of the plaintiffs. al-

'The group ruling, which is issued to the USCC, covers all en-

tities listed in The Official Catholic Directory, which now includes

185 dioceses, 19,546 parishes, 7,485 elementary schools, 1,408 high

schools, 238 colleges, 645 hospitals, and numerous other Catholic

entities. Joint Appendix 24-27. The Official Catholic Directory

entry for the Diocese of Brooklyn appears in the Joint Appendix

in the Court of Appeals, at A 464.

leges any IRS enforcement actions, or threatened en-

forcement actions, against them personally or against

their churches. They claim only that the granting of a

tax exemption to “the Roman Catholic Church” in gen-

eral violates section 501(¢c) (3) of the Internal Revenue

Code,? denies the plaintiffs due process and equal protec-

tion, and constitutes an establishment of religion.

The complaint alleges, “{u}]pon information and belief,

... [that] Roman Catholic priests and other Church of-

ficials have actively and systematically participated in

political campaigns in all parts of the country” to ad-

vance their belief that unborn life is human and must be

protected. Joint Appendix (“JA”) 11. The complaint

alleges further, once again “{u]pon information and be-

lief,” that “{[m]Jany Catholic priests and other Church

officials . . . have, from their pulpits, regularly and re-

peatedly urged their congregants to donate to ‘right-

to-life’ committees and political parties, to obtain (often

in the church parking lot following the service) ‘right-

to-life’ campaign literature, to sign the nominating peti-

tions of ‘right-to-life’ candidates. At least one church has

distributed ‘right-to-life’ leaflets with the church bulle-

tin.” JA 12-13. Plaintiffs allege that a policy statement

adopted by the NCCB in 1975, the Pastoral Plan for

Pro-life Activities, is the “blueprint for the Church’s il-

legal activities.” JA 10-11.

The complaint seeks an injunction ordering the govern-

ment to (1) “revok[e] the tax exemption of the Roman

Catholic Church,” (2) assess and collect all resulting

2 At the time the amended complaint was filed, section 501(c)(3)

exempted from federal income taxation those entities “organized

and operated exclusively for religious, charitable, . . . or educational

purposes, . . . which [do] not participate in, or intervene in (in-

cluding the publishing or distributing of statements), any political

campaign on behalf of any candidate for public office.” In 1987

Congress amended section 501(c)(3) to refer also to political cam-

paign activities “in opposition to” any candidate for public office.

Pub. L. 100-203 (1987).

back taxes, and (3) notify the Church’s contributors that

they may not claim charitable tax deductions for their

contributions. JA 18-19.

B. The Motions To Dismiss

The government and USCC/NCCB moved to dismiss

the complaint on several grounds, including lack of stand-

ing. On July 19, 1982, the district court granted the

motions in part and denied them in part. Appendix to

the Petition for a Writ of Certiorari. (“Pet. A.”) 54a-

92a. The court dismissed the claims against USCC/

NCCB, but held that the plaintiffs (except five clinics)

had standing to sue the government. The court found

that the clergy plaintiffs had standing under the Estab-

lishment Clause, because they had “devoted their lives to

religious communities and beliefs that are denigrated by

government favoritism to a different theology.” Pet. A.

67a-68a. The court found that all of the other individual

plaintiffs and the three advocacy organizations had stand-

ing as voters. Pet. A. 69a-74a. The district court denied

the government’s motion to certify the question of stand-

ing for an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). JA 2.

C. The Subpoenas

After USCC /NCCB had been dismissed as parties,

ARM served subpoenas duces tecum on USCC/NCCB,

demanding the production of voluminous internal Church

documents relating to the Church’s religious position on

abortion and its communications with the IRS. The sub-

poenas demanded, among other things, the following doc-

uments: (1) all drafts of the Pastoral Plan for Pro-life

Activities, a 1975 statement of the U.S. bishops’ theologi-

eal, moral and social position on abortion, JA 70, 91;

(2) the minutes of the bishops’ discussions of the Pas-

toral Plan’s proposed contents, and all documents relating

to its implementation, JA 70, { 2; (3) all “Church Bulle-

tins, clergy Bulletins, Pastoral letters, directives, memo-

randa, or similar documents issued or promulgated by

any” bishop in the United States to any other person

concerning the Pastoral Plan, JA 70, 16; (4) all docu-

ments reflecting contact with any candidates for public

office anywhere in the United States, JA 71, 18; (5) all

documents reflecting financial support or “involvement”

of USCC NCCB, “or any state Catholic conference, arch-

diocese, diocese, or parish church,” or any “church per-

sonnel” (defined to include every employee of each of

those organizations), with twelve national and state pro-

life organizations, JA 72, 710; (6) USCC NCCB’s tax

or information returns and, “without limitation, all cor-

respondence, memoranda or other communications relat-

ing to the consideration or approval by the Internal Rev-

enue Service” of any application for section 501(c¢) (3)

status, JA 73, 714; and (7) the identities of the presi-

dents and executive secretaries of the Catholic confer-

ences in sixteen states, and the identities of the bishops

and directors of pro-life activities in eighteen dioceses

for the years 1975 to the present, J.A. 71, 1 9."

USCC ‘NCCB moved to quash the subpoenas on the

ground, inter alia, that the plaintiffs lacked Article III

standing, and the court was therefore without Article III

power to issue and enforce the subpoenas. One year

later, on April 4, 1984, the district court “summarily

denied” the motion in a single sentence. JA 80. At the

same time, the court denied the government’s motion to

stay all proceedings in the case pending this Court’s de-

cision in Allen v. Wright, 468 U.S. 737 11984). JA 80.

After Allen was decided, the government renewed its

motion to dismiss the complaint for lack of standing.

’ The evident purpose of this last request—which would result

in the identification of at least 25 bishops or archbishops, 47 auxili-

ary bishops and numerous others—-was to identify witnesses to be

deposed. JA 110. The plaintiffs have already indicated their inten-

tion to take the depositions of 17 individuals, 10 of whom are

bishops or archbishops, and 3 of whom hold the rank of Cardinal.

Court of Appeals Joint Appendix A 201.

The district court denied the motion on March 1, 1985,

Pet. A. 93a-102a, and on July 15 denied the government’s

motion to certify the question of standing for an inter-

locutory appeal pursuant to 28 U.S.C. § 1292(b). JA 81.

D. Contempt Proceedings

On June 20, 1985, ARM moved to hold USCC, NCCB

in contempt. USCC/NCCB moved for a protective order,

arguing that the subpoenas raised substantial First

Amendment issues that should not be faced while the

government was attempting to secure appellate review.

The court denied ARM’s motion for contempt on Septem-

ber 5, but ordered USCC/NCCB to begin production of

documents “forthwith.” * JA 81.

USCC /NCCB then asked ARM to agree to a_ protec-

tive order governing the use of the documents. ARM

refused and filed a renewed motion for contempt. The

district court directed the parties to enter into a protec-

tive order, denied plaintiffs’ motion for contempt, and

stayed compliance with the subpoenas pending the court

of appeals’ disposition of a petition for a writ of prohibi-

tion or mandamus that had been filed by the government.

JA 83-84. The court of appeals summarily denied that

petition on January 14, 1986. Jn re Baker, 788 F.2d 3

(2d Cir. 1986).

ARM once again renewed its motion to hold USCC

NCCB in contempt. On February 26, 1986, the district

court denied the renewed motion, but ordered USCC /

NCCB to begir production of documents on March 7,

1986. JA 87. On March 6, 1986, USCC. NCCB delivered

to the district judge a letter explaining that they could

not, in conscience, produce the subpoenaed records be-

cause of their belief that the court lacked jurisdiction to

issue the subpoenas. Court of Appeals Joint Appendix

* The district court ordered ARM to “narrow” two document re-

quests relating to the minutes of bishops’ meetings. Those docu-

ments were not required to be produced “at this time.” JA 81-82.

A 369-71. ARM then renewed its motion to hold USCC

and NCCB in contempt. JA 88. USCC/NCCB responded

with affidavits detailing the reasons for their refusal to

comply with the subpoenas. JA 96-112.

On May 8, 1986, the district court granted ARM’s mo-

tion, held USCC/NCCB in civil contempt, and imposed a

fine of $50,000 per day against each organization for

each day the documents were not produced. Pet. A. 44a-

5la. The sanctions have been stayed throughout the

course of the appellate proceedings. Pet. A. 52a-53a,

105a-107a, 108a-111a.

E. USCC/NCCB’s Appeal

USCC ‘NCCB appealed from the civil contempt order

on the ground that the district court lacked subject mat-

ter jurisdiction to entertain the suit or to issue and en-

force its subpoenas. On June 4, 1987, a divided panel

of the court of appeals affirmed. “A lack of subject mat-

ter jurisdiction,” the majority announced, “does not dis-

able the district court from exercising all judicial power.”

Pet. A. 12a. Relying principally on a 1919 grand jury

ease. Blair v. United States, 250 U.S. 273 (1919), the

majority held that “{wlith respect to jurisdiction over

the underlying action . . . the witness may make only

the limited challenge as to whether there exists a color-

able basis for exercising subject matter jurisdiction, and

not a full-scale challenge to the correctness of the Dis-

trict Court’s exercise of such jurisdiction.” Pet. A. la,

10a ‘emphasis added). In one paragraph, the court then

found that “colorable jurisdiction” existed. Pet. A. 19a-

20a.

Judge Cardamone dissented,*® emphasizing this Court’s

statement in United States v. Morton Salt Co., 338 U.S.

5 Judge Kearse filed a brief concurring opinion, emphasizing that

the court’s jurisdiction to determine jurisdiction must include the

ability to compel evidence designed to establish standing. Pet. A.

632, 642 (1950), that “[t}he judicial subpoena power .. .

is subject to those limitations inherent in the body that

issues them because of the provisions of the Judiciary

Article of the Constitution.” Pet. A. 24a. He concluded

that “both traditional constitutional principles and case

law make ciear the District Court’s power to issue dis-

covery and civil contempt sanctions derives from and is

limited by its power over the lawsuit.” Pet. A. 27a. Con-

sequently, he concluded that USCC’/NCCB could chal-

lenge the lawfulness of the subpoenas based upon the

absence of subject matter jurisdiction. Indeed, citing

Bender v. Williamsport Area School District, 475 U.S. 534,

541 (1986), Judge Cardamone stressed that “[w holly

apart from the witnesses’ standing, we have an _ inde-

pendent and affirmative duty to review the lower court’s

authority.” Pet. A. 30a.

SUMMARY OF ARGUMENT

The plaintiffs in this case lack Article III standing

to challenge the tax-exempt status of the Roman Catholic

Church. The district court was, therefore, without “Ju-

dicial Power” under Article III to issue subpoenas seek-

ing discovery on the merits, or to enforce those subpoenas

through civil conter pt.

I. The judicial subpoena power is an element of the

“judicial Power” conferred by Article III. See, e¢.¢.,

United States v. Morton Salt Co., 338 U.S. 632, 641-42

(1950). As such, it is limited by Article III’s require-

ment of a case or controversy. If there is no case or

controversy, there is no judicial power to issue a sub-

poena or to compel compliance through civil contempt.

This Court has repeatedly held that “ ‘orders made by a

court having no jurisdiction to make them may be dis-

regarded without liability to process for contempt.’ ”

42a. But the discovery sought through these subpoenas relates only

to the merits of the asserted claims, not to standing or any other

aspect of jurisdiction.

United States v. United Mine Workers, 330 U.S. 258,

291 (1947), quoting United States v. Shipp, 203 U.S.

563, 573 (1906). Indeed, this Court has held that a civil

contempt order cannot stand if for any reason the under-

lying order was ‘erroneously issued” or “beyond the

jurisdiction of the court.” United Mine Workers, 330

U.S. at 295. That principle surely applies when, as in

this case, the jurisdictional defect is the absence of Arti-

cle III power.

The court of appeals’ conclusion that “colorable” juris-

diction is sufficient to justify the issuance of a subpoena

and the imposition of civil contempt sanctions was based

upon a misreading of United Mine Workers. Recognizing

that courts necessarily have jurisdiction to decide their

own jurisdiction, this Court in United Mine Workers

held that criminal contempt may be imposed for viola-

ting orders entered “to preserve the existing conditions”

pending a determination as to jurisdiction—as long as

the claim of jurisdiction is “substantial” and “not friv-

olous.” Jd. at 291, 293. But the subpoena in this~ case

was not entered to facilitate a decision on jurisdiction,

or to preserve existing conditions pending such a deci-

sion. In fact, the district court had already decided,

erroneously, that it had jurisdiction.

The court of appeals itself recognized that if the lack

of Article III power disables a court from issuing a sub-

poena, then the witness to whom a subpoena is addressed

may challenge it on the ground that Article IIJ power

is ‘acking. Indeed, even if the witnesses in this case

had not challenged the court’s Article III power to sub-

poena them and hold them in contempt, the district court

and the appellate courts would have been required to

raise the issue sua sponte. See, e.g., Bender v. Williams-

port Area School District, 475 U.S. 534, 541 (1986).

II. That the district court was without judicial power

under Article III is clear. In this case, as in Allen v.

Wright, 468 U.S. 737 (1984), and Simon vy. Eastern

Kentucky Welfare Rights Organization, 426 U.S. 26

(1976), the plaintiffs lack Article III standing to chal-

lenge the tax-exempt status of third parties, because they

cannot establish that they suffered ‘distinct and palpa-

ble” “personal injury” tnat was “fairly traceable” to the

grant of a tax exemption and “likely to be redressed by

the requested relief.” Allen, 468 U.S. at 751. The claim

of the clergymen that they have somehow been “deni-

grated” by the IRS’s failure to revoke the tax-exempt

status of the Roman Catholic Church is insubstantial.

The IRS has neither endorsed Catholicism nor stig-

matized those who practice other religions. And even if

the clergy plaintiffs can be said to have suffered some

undefined stigma, that is constitutionally insufficient to

support standing because they were not “personally de-

nied equal treatment” or “ ‘directly affected by the laws

and practices against which their complaints are di-

rected.’”’ Allen, 468 U.S. at 755 (emphasis added) ;

Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464, 487 n.22

(1982), quoting Abington School District v. Schempp,

374 U.S. 203, 224 n.9 (1963) (emphasis added).

Nor is the plaintiffs’ claim of voter standing sufficient

under Article III. Unlike the plaintiffs in Baker v. Carr,

369 U.S. 186 (1962), these plaintiffs do not allege any

diminution in their representation or impairment of their

right to vote. And it is entirely “speculative” whether

revocation of the Catholic Church’s tax exemption “would

have a significant impact” on the plaintiffs’ ability to ac-

complish their political objectives. Allen, 468 U.S. at

758.

In this case, as in Valley Forge, Allen, Schlesinger Vv.

Reservists Committee to Stop the War, 418 U.S. 228

(1974), and other cases, the plaintiffs “fail to identify

any personal injury suffered by them as a consequence

of the alleged constitutional error, other than the psy-

chological consequence presumably produced by observa-

tion of conduct with which one disagrees. That is not an

injury sufficient to confer standing under Art. III... .

Valley Forge, 454 U.S. at 485 (emphasis in original).

Finally, recognizing standing in this case would in-

trude the Judiciary into the enforcement prerogatives of

the Executive Branch, in disregard of the constitutional

separation of powers and the elaborate statutory frame-

work established for enforcement of the tax code.

ARGUMENT

The plaintiffs in this case, a group of individuals and

organizations who oppose the Roman Catholic Church’s

position on abortion, challenge the tax-exempt status of

the Roman Catholic Church in the United States. In

pursuit of their purported claims, they seek massive dis-

covery from the two national organizations of Catholic

bishops. These efforts by legal bystanders to invoke the

judicial power against the Catholic Church fly in the

face of Article III of the Constitution and the precedents

of this Court.

I. USCC/NCCB MAY CHALLENGE THE COURT’S

ARTICLE III POWER

A. A Court Without Article III Power Cannot Issue

A Subpoena Or Coerce Compliance Through Civil

Contempt

In Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464, 475-

76 (1982), this Court stated the fundamental principle

that governs this case:

”

([O]f one thing we may be sure: Those who do not

possess Article III standing may not litigate as suit-

ors in the courts of the United States.

The absence of Article III standing not only disables

plaintiffs from securing a judgment; it bars them from

“litigat{|ing] as suitors” in the federal courts. Jbid.

That means, among other things, that they may not in-

voke the court’s process to compel testimony, and they

may not seek civil contempt orders to assist them in liti-

gation. The power to subpoena witnesses in a civil case,

and to hold them in civil contempt, is part of the “judi-

cial Power” conferred by Article III, and that power ex-

tends only to cases and controversies.

The court of appeals majority rejected this basic prin-

ciple of constitutional law. The majority explicitly “dis-

agree{d]” with “the contention of the [USCC/NCCB]

and the federal defendants that the lack of subject mat-

ter jurisdiction over the underlying lawsuit impairs the

power of the district court to order the witnesses to pro-

duce evidence and to adjudicate them in contempt for

their refusal.” Pet. A. 12a. The majority explained:

If the absence of subject matter jurisdiction over the

underlying suit would preclude the District Court

from ordering a witness to produce evidence and ef-

fecting compliance, then we would agree that the

witness would have standing to assert such a claim

on appeal from an adjudication of contempt. We

disagree, however, with the premise. /bid.

The majority held that the power to issue subpoenas

and impose civil contempt penalties for noncompliance

are virtually free of Article III limitations: only a “col-

orable” claim of jurisdiction is necessary to sustain the

issuance of a subpoena and the imposition of civil con-

tempt. Pet. A. 18a. That conclusion was erroneous.

When a claim of jurisdiction is “colorable,” the court’s

power to decide jurisdiction can support limited discov-

ery on the issue of jurisdiction, as well as orders preserv-

ing existing conditions pending a decision on jurisdiction.

But the court’s necessary power to decide jurisdiction

cannot support discovery, like that involved here, relating

solely to the merits. When, as in this case, it can be

readily determined without the subpoenaed information

that jurisdiction—indeed, Article II] power—is lacking,

that lack of power extends to the issuance of the sub-

poenas and the imposition of civil contempt for noncom-

pliance.

1. The Subpoena Power and Civil Contempt Power

Are Subject to Article lil

In United States v. Morton Sait Co., 338 U.S. 632 (1950),

this Court made clear that the judicial subpoena power is

an element of the “judicial Power” conferred by Article

III, and is therefore limited by the requirement of a case

and controversy.

Federal judicial power itself extends only to adju-

dication of cases and controversies .... The judi-

cial subpoena power not only is subject to specific

constitutional limitations, . . . but also is subject to

those limitations inherent in the body that issues

them because of the provisions of the Judiciary Ar-

ticle of the Constitution.

Id. at 641-42. In short, absent a case or controversy,

there is no judicial power to issue subpoenas.® See also

United States v. Bisceglia, 420 U.S. 141, 148 (1975) ;

United States v. Powell, 379 U.S. 48, 57 (1964).

The power to issue civil contempt orders is likewise

limited by Article III. If there is no judicial power

under Article III to issue a subpoena, then there is no

power to compel compliance through civil contempt. Civil

contempt “is wholly remedial, [and] serves only the pur-

poses of the complainant.” McCrone vy. United States,

307 U.S. 61, 64 (1939); see also Penfield Co. v. SEC,

® The court of appeals read Morton Salt as addressing only “dis-

covery directed at a party that is resisted on the ground that the

court lacks subject matter jurisdiction over the lawsuit,” not dis-

covery directed at non-party witness. Pet. A. 17a (emphasis

added). But Morton Salt addressed the “subpoena power,” and

subpoenas are ordinarily addressed to non-parties, not parties.

Subpoenas are not necessary to secure discovery from parties. See

Fed. R. Civ. P. 26-37. In any event, if, as the court of appeals

majority conceded, the lack of Article III power disables a court

from authorizing discovery from a party, it necessarily disables

a court from subpoenaing a non-party. Article III sets limits on

the judicial power, and that power is no greater over non-parties

than over parties.

330 U.S. 585, 590 (1947); Gompers v. Bucks Stove &

Range Co., 221 U.S. 418, 441 (1911). Its purpose here

was to assist the plaintiffs in pursuit of their claim for

relief. If the plaintiffs are without Article III standing

to sue, however, they have no claim to the court’s as-

sistance, and the court has no power to provide it.

Proceedings for civil contempt “are instituted and

tried as a part of the main cause,” Gompers v. Bucks

Stove & Range Co., 221 U.S. at 445, and if there is no

judicial power over the main cause there is no power to

issue a civil contempt order. As Judge Cardamone con-

cluded in his dissent, the courts’ “power to issue a civil

contempt order derives from and depends upon their

subject matter jurisdiction over the underlying action.”

Pet. A. 23a.

There is nothing novel or uncertain about the principle

that contempt sanctions may not be imposed for viola-

tions of orders that are beyond the power or jurisdiction

of the court. The principle was recognized by this Court

in a series of decisions a century ago. In Fr parte Row-

land, 104 U.S. 604, 612 (1882), the Court held that “if

the command [of an order| was in whole or in part be-

yond the power of the Court, the writ, or so much of it

as was in excess of jurisdiction, was void, and the Court

had no right in law to punish for any contempt for its

unauthorized requirements.” In that case, county com-

missioners had been held in contempt for refusing to

obey a federal court order directing them to collect a

special property tax. The order, this Court concluded,

“was beyond the jurisdiction of the Circuit Court,” id.

at 616, and since the underlying order “was in excess of

jurisdiction, so necessarily were the proceedings for con-

tempt in not obeying.” Jd. at 617-18.

Four years later, the Court repeated the point in Ev

parte Fisk, 113 U.S. 713, 718 (1885):

When .. . a court of the United States undertakes.

by its process of contempt, to punish a man for re-

fusing to comply with an order which that court

had no authority to make, the order itself, being

without jurisdiction, is void, and the order punishing

for the contempt is equally void.

Finding that the Circuit Court was “without authority”

to enter orders for the pretrial examination of the de-

fendants, the Court concluded that it was “equally with-

out authority to enforce these orders by process for con-

tempt.” Jd. at 726.7 See also In re Burrus, 136 U.S. 586,

597 (1890) (granting a writ of habeas corpus to in-

dividual held in contempt for violating a child custody

order on the ground that the court had no jurisdiction

over the case); Jn re Sawyer, 124 U.S. 200, 221 (1888)

(granting a writ of habeas corpus to state officials held

in contempt for disobeying a federal court order where

the suit “relate[s] to a subject which the Circuit Court

of the United States . . . has no jurisdiction or power

over”); Gompers v. Bucks Stove & Range Co., supra

(reversing civil contempt judgment on ground that un-

derlying dispute was settled).

In United States vy. United Mine Workers, 330 U.S.

258 (1947), this Court reaffirmed the principle that a

civil contempt order cannot stand if the court lacks jur-

isdiction or power over the underlying action, or if for

any reason the order that is disobeyed was “erroneously

issued” or “beyond the jurisdiction of the court.” Jd. at

295.5 In that case, a union and its president challenged

7 The jurisdictional determinations in these cases were not made

on appeal from judgments on the merits, but rather in habeas

corpus proceedings aimed at the contempt orders. The cases pro-

ceeded by writ of habeas corpus because, prior to this Court’s deci-

sion in Alexander v. United States, 201 U.S. 117 (1906), contempt

judgments were not separately appealable. See Ex Parte Fisk, 113

U.S. at 718.

8 This principle has been applied on countless occasions in the

federal courts. See, e.g., In re Sequoia Auto Brokers, Ltd., 827

F.2d 1281 (9th Cir. 1987); Blocksom & Co. Vv. Marshall, 582 F.2d

1122, 1124 (7th Cir. 1978); ITT Community Development Corp. v.

civil and criminal contempt orders entered for violation

of a temporary restraining order against a strike. The

temporary restraining order had been entered to pre-

serve the status quo while the court considered the

union’s contention that the Norris-LaGuardia Act de-

prived the court of jurisdiction to issue an injunction

against the strike.

This Court upheld the criminal and civil contempt or-

ders on the ground that “the elements of federal juris-

diction [ove. the case] were clearly shown,” id. at 294,

and that the Norris-LaGuardia Act did not <leprive the

court of jurisdiction to issue a temporary restraining or-

der. It concluded, however, that if the Norris-LaGuardia

Act did place injunctive relief “beyond the jurisdiction

of the District Court,” id. at 289, the judgment of crimi-

nal contempt would be affirmed, while the judgment for

civil contempt would be “set aside.” Jd. at 295.

The Court recognized, at the outset, the basic principle

established by its earlier decisions: “ ‘orders made by a

court having no jurisdiction to make them may be dis-

regarded without liability to process for contempt.’” Jd.

at 291, quoting United States v. Shipp, 203 U.S. 563,

573 (1906). The district court, however, “ ‘necessarily

had jurisdiction to decide whether the case was prop-

erly before it,’” and “‘[{uJntil its judgment declining

jurisdiction should be announced, it had authority from

the necessity of the case to make orders to preserve the

existing conditions.’” Ibid. Disobedience of such orders,

the Court held, “is punishable as criminal contempt”

even if it develops that jurisdiction was lacking—but not

if “the question of jurisdiction [was] frivolous and not

substantial. ...” Jd. at 293.

Civil contempt, which is involved here, was regarded

as a different matter. “If the Norris-LaGuardia Act

Barton, 569 F.2d 1351, 1356 (5th Cir. 1978); United States v.

Thompson, 319 F.2d 665 (2d Cir. 1963).

were applicable in this case,” the Court concluded, “the

conviction for civil contempt would be reversed in its

entirety.” Jd. at 295. Civil contempt, as noted above,

“is wholly remedial, [and] serves only the purposes of

the complainant.” McCrone v. United States, 307 U.S.

at 64. And the complainant’s “right to remedial relief

falls with an injunction which events prove was erron-

eously issued, and a fortiori when the injunction or re-

straining order was beyond the jurisdiction of the court.”

United Mine Workers, 330 U.S. at 295 (emphasis added)

(citations omitted).

United Mine Workers and Morton Salt together dictate

the result in this case. Morton Sait makes clear that a

court is without power to issue a subpoena absent a case

or controversy, and United Mine Workers confirms the

well-established principle that an order that is beyond

the court’s power or jurisdiction cannot sustain a judg-

ment of civil contempt.®

2. A “Colorable” Claim of Article III Power is

Insufficient to Support the Issuance of the Sub-

poenas and Civil Contempt Order in this Case

Citing United Mine Workers, the court of appeals ma-

jority concluded that a “colorable” claim of Article III

power is always sufficient to support the issuance of a

subpoena and the imposition of civil contempt for its

disobedience. Pet. A. 18a. But neither United Mine

Workers nor any other decision of this Court or any

other court supports such a rule.

United Mine ‘Vorkers simply recognized that when a

non-frivolous claim of jurisdiction is made, the court

necessarily has power to enter orders necessary to enable

® While the principal jurisdictional defect in this case is the

absence of Article III power, United Mine Workers makes clear

that a civil contempt order cannot stand if there is any jurisdic-

tional defect in the underlying order. The jurisdictional issue in

that case was a statutory one.

it to decide the question of jurisdiction, and to enforce

those orders through criminal contempt. 330 U.S. at 293.

But when, as in this case, the underlying order is not

entered to facilitate a decision on jurisdiction, but rather

to secure discovery on the merits, merely “colorable” jur-

isdiction cannot support civil or criminal contempt. In

these circumstances, the general rule prevails: “ ‘orders

made by a court having no jurisdiction to make them

may be disregarded without liability to process for con-

tempt.’” Jd. at 291, quoting Shipp, 203 U.S. at 573.

See In re Green, 369 U.S. 689, 692 (1962) (“state court

is without power to hold one in contempt for violating

an injunction that the state court had no power to enter,

by reason of federal pre-emption”) ."°

There is no claim in this case that the subpoenas and

contempt order were intended to assist the court in re-

solving the question of jurisdiction, or to preserve the

status quo pending that determination. In fact, the dis-

trict court had already made a determination that it had

jurisdiction. USCC/NCCB’s decision not to comply with

the subpoenas did not frustrate the court’s ability to de-

cide the question of jurisdiction; to the contrary, it was

the only means available to them to seek review of the

jurisdictional basis for the subpoenas. See United States

Vv. Ryan, 402 U.S. 530, 582-33 (1971); Cobbledick v.

United States, 309 U.S. 323 (1940). Nor would com-

pliance with the subpoenas have preserved the status

quo; compliance would have destroyed the existing con-

1?When this Court has upheld criminal contempt convictions

without regard to the correctness of the underlying order, it has

emphasized that the court below had personal jurisdiction and

subject matter jurisdiction—not merely “colorable” jurisdiction.

Walker vy. City of Birmingham, 388 U.S. 307, 315 (1967): Howat

V. Kansas, 258 U.S. 181, 189-90 (1922). (Howat also upheld a civil

contempt order—not, however, on the ground that the correctness

of the underlying order was irrelevant, but rather on the ground

that the particular constitutional challenge asserted did not affect

the validity of the underlying order. 258 U.S. at 185-86.)

ditions by revealing the information USCC/NCCB sought

to protect. See Maness v. Meyers, 419 U.S. 449, 460

(1975).

The suggestion that colorable jurisdiction is all that is

necessary to sustain the subpoena and civil contempt

powers in these circumstances is unsupported by case

law or necessity. There are, in fact, compelling reasons

to insist that the burdens of discovery and civil contempt

not be imposed if the Constitution deprives the court of

power to resolve the underlying dispute. The burdens

and costs of discovery may be more significant from a

practical standpoint than the actual outcome of the case—

in particular when, as in this case, sensitive internal in-

formation is sought. In some cases, the desire to pursue

discovery may be the reason for bringing a lawsuit in

the first place. The burdens of civil contempt, as the

$100,000 daily fine in this case illustrates, can be even

greater. The sensible rule—and the rule required by the

Constitution—is that a court without Article III power

to decide a matter is also without Article III power to

issue and enforce subpoenas that can only be justified by

the need to prepare the matter for decision on the merits.

B. USCC/NCCB Are Not Precluded From Challenging

The Court’s Article III Power

The court of appeals held that USCC/NCCB did not

have what it called “standing” to challenge the district

court’s Article III] power over the lawsuit. Pet. A. 8a,

12a, 15a. But that conclusion was premised upon its

erroneous view that the absence of Article III power

“does not disable” the court from issuing subpoenas and

civil contempt orders. Pet. A. 12a. Even the court of

appeals majority recognized that if Article III power is

necessary to support a judicial subpoena, then USCC/

NCCB do “have standing” to challenge the court’s Arti-

cle III power. Pet. A. 12a. There is, then, no real issue

of USCC /NCCB’s right to raise its jurisdictional defense.

1. “Standing” Is Not Necessary To Point Out the

Court’s Lack of Article III Power

Any suggestion that USCC/NCCB lack “standing” to

challenge the court’s Article III power reflects a misun-

derstanding of the requirements of Article III. The ex-

istence of “judicial Power” under Article III is not a

matter to be considered only when raised by an inter-

ested party. Article III power is always at issue, as is

subject matter jurisdiction generally, and must be con-

sidered whenever and by whomever it is raised—indeed,

whether it is raised at all. Federal Rule of Civil Proce-

dure 12(h) (3) makes that clear:

Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the

subject matter, the court shall dismiss the action.

(Emphasis added).

A federal court is obliged to examine its possible lack

of subject matter jurisdiction whether the matter is

raised by a party, by a witness, or by the court on its

own initiative—and whether it is raised when the com-

plaint is filed, in the course of discovery, in the midst of

trial, or on appeal. Thus, in Bender v. Williamsport

Area School District, 475 U.S. 534 (1986), this Court

vacated the judgment of the court of appeals on the

ground, never asserted by any of the parties, that the

appellant lacked Article III standing. The Court ex-

plained:

Federal courts are not courts of general jurisdiction;

they have only the power that is authorized by Ar-

ticle III of the Constitution and the statutes enacted

by Congress pursuant thereto. For that reason, ev-

ery 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 re-

view,” even though the parties are prepared to con-

cede it.

475 U.S. at 541, quoting Mitchell v. Maurer, 293 U.S.

237, 244 (1934) (citation omitted).

The question of jurisdiction is so “fundamental” that

“the Court is bound to ask and answer [it] for itself,

even when not otherwise suggested, and without respect

to the relation of the parties to it.” Bender, 475 U.S. at

547, quoting Mansfield C. & L.M.R. Co. v. Swan, 111

U.S. 379, 382 (1884) (emphasis added)."! See also Hodel

v. Irving, 107 S.Ct. 2076, 2080 (1987) (raising, sua

sponte, Article III and prudential limitations on stand-

ing); Juidice v. Vail, 430 U.S. 327, 331-33 (1977)

(standing) ; United States v. Corrick, 298 U.S. 435, 440

(1936) (statutory jurisdiction). It necessarily follows

that the court is bound to answer the question of juris-

diction when it is “suggested” by anyone, party or wit-

ness.

2. USCC/NCCB Have “Standing” To Point Out the

Court’s Lack of Article III Power

Even if some sort of “standing” were required to

raise the district court’s lack of Article III power, it

certainly would not be lacking in this case. USCC/NCCB

can show that they suffer “ ‘actual or threatened injury

as a result of?” the Court’s exercise of purported Article

III power against them, and that their injury is “ ‘re-

dressable by the court.’” Bender, 475 U.S. at 542 (cita-

tions omitted).

11 The court of appeals majority read Bender as requiring a

reviewing court to consider jurisdiction over the underlying action

only on an appeal from a final judgment in the underlying action.

Pet. A. 16a. But that reading of Bender simply reflects the ma-

jority’s erroneous view that the subpoena and civil contempt powers

do not depend on the existence of Article III power over the under-

lying suit. See Pet. A. 12a. And since Bender makes clear that the

obligation to consider jurisdiction “is inflexible and without excep-

tion,” applying “in all cases” and “[o]n every writ of error or

appeal,” 475 U.S. at 547, quoting Mansfield C. & L.M.R. Co. V. Swan,

111 U.S. at 382, the district court’s Article III power must be

examined on this appeal.

The judicial subpoena and civil contempt powers have

been inveked to compel USCC/NCCB to produce volu-

minous internal church documents to outspoken critics of

the Catholic Church. Noncompliance with the subpoenas

has resulted in daily fines of $100,009, and ‘“[c]ompli-

ance could cause irreparable injury because appellate

courts cannot always ‘unring the beil’ once the informa-

tion is released.””’ Maness v. Meyers, 419 U.S. at 460.

Even in the ordinary case, a witness may challenge a

subpoena on the ground that it is “unduly burdensome or

otherwise unlawful” and, if contempt is ordered, he may

“obtain full review of his claims before undertaking any

burden of compliance with the subpoena.” United States

v. Ryan, 402 U.S. at 532, 533 (emphasis added) ; see also

Cobbledick v. United States, 309 U.S. at 328. A sub-

poena that is beyond the power of the court is “unlaw-

ful,” and that is necessarily an issue that any witness

may raise.’

In this case, USCC/NCCB have an especially strong

interest in challenging the court’s power to issue the

subpoenas, for the exercise of that power has an un-

deniable impact upon the Catholic Church’s rights of

free speech and free exercise of religion. Churches and

other religious organizations rightly consider it their ob-

ligation to speak out on the moral aspects of social, eco-

nomic and political issues. The Roman Catholic Church

is no exception. The bishops who comprise the USCC/

NCCB have stated that

[i]t is the Church’s role as a community of faith to

call attention to the moral and religious dimension

12 The court of appeals majority believed that a witness may only

raise legal objections that “concern[] the witness personally.” Pet.

A. 10a. But when a contempt order is entered, “the matter becomes

personal to the witness and a judgment as to him.” Alexander v.

United States, 201 U.S. 117, 122 (1906) (emphasis added). At that

point, if not before, all issues affecting the validity of the court’s

exercise of power—including the existence of judicial power—

“concern the witness personally.”

of secular issues, to keep alive the values of the Gos-

pel as a norm for social and political life, and to

point out the demands of the Christian faith for a

just transformation of society.”

The right of religious organizations to address such is-

sues is well established. “Adherents of particular faiths

and individual churches frequently take strong positions

on public issues. . . . Of course, churches as much as

secular bodies and private citizens have that right.”

Walz v. Tax Commission, 397 U.S. 664, 670 (1970); see

also McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plu-

rality opinion) ; id. at 640 (Brennan, J., concurring).

Forcing the Roman Catholic bishops of the United

States to disclose internal documents to persons who op-

pose the Church’s religious teaching on abortion would

intrude upon the Church’s exercise of its First Amend-

ment rights in the past and discourage the full expres-

sion of those rights in the future. Cf. NAACP v. Ala-

bama, 357 U.S. 449 (1958). In fact, the Church’s reli-

gious liberty and freedom of expression are threatened

by the very pendency of this action, which seeks to strip

USCC/NCCB and the Catholic Church in general of

their tax exemptions based on activities allegedly under-

taken to promote their religious beliefs.'.* No one has a

greater interest in establishing the court’s lack of power

13 Political Responsibility: Choices for the Future, A Statement

of the Administrative Board of the USCC 4 (September 1987).

This statement addresses the following issues in addition to abor-

tion: arms control and disarmament, capital punishment, civil

rights, the economy, education, family life, food and agricultural

policy, health, housing, human rights, immigration and refugee

policy, mass media, and regional conflict in the world.

4 Recognizing the sensitivity of inquiries into a church’s com-

pliance with the Internal Revenue Code, Congress has placed strict

limitations upon church tax inquiries and examinations. 26 U.S.C.

§ 7611 (1987); see H.R. Conf. Rep. No. 861, 98 Cong., 2d Sess. 1101-

1114 (1984), reprinted in 1984 U.S. Code Cong. & Admin. News

1445, 1789-1802. See p. 45-46, infra.

over this case than USCC’/NCCB. They are, after all,

the real targets of the suit.

3. The Court of Appeals Misread Blair v. United

States

Much of the majority’s analysis was based upon an

unprecedented expansion of this Court’s decision in Blair

v. United States, 250 U.S. 273 (1919). That case con-

cerned the broad investigative power of the grand jury,

which, unlike a court in a civil case, “does not depend on

a case or controversy for power to get evidence.” United

States v. Morton Salt Co., 338 U.S. at 643. See also

United States v. Bisceglia, 420 U.S. at 148: United

States v. Powell, 379 U.S. at 57. Blair simply did not

address the more limited judicial subpoena power con-

ferred by Article IIT.

Blair held that a witness could not object to a grand

jury subpoena by attacking the constitutionality of the

statute he speculated was the basis of the investigation.

The reason stemmed from the nature of a grand jury

proceeding. The grand jury is an investigative body and,

as this Court explained, the witness “is not entitled to set

limits to the investigation that the grand jury may con-

duct.” 250 U.S. at 282. The “examination of witnesses

by a grand jury need not be preceded by a formal

charge.” Ibid. Indeed, the “‘question whether the facts

show a case within [the grand jury’s] jurisdiction” and,

if so, the “precise nature of the offense . . . normally are

developed at the conclusion of the grand jury’s labors,

not at the beginning.” Jd. at 282-83 (citation omitted).

It is premature and speculative for a witness to antici-

pate these matters by raising a constitutional challenge

to a statute that may or may not be invoked against him.

The grand jury witness, in other words, is “‘not inter-

ested” to challenge the constitutionality of such a statute,

id. at 279, because a successful challenge “would not give

the witness the relief he sought.” Pet. A. 34a (Carda-

mone, J., dissenting). The grand jury could subpoena

him anyway, because the “jurisdiction” of the grand jury

does not depend upon the constitutionality of any partic-

ular statute that may have been v:olated.

Because a court in a civil case, unlike a grand jury,

depends on a case or controversy for its power to get

evidence, the subpoenaed witness may challenge the ex-

istence of a case or controversy. And ordinarily such a

challenge cannot be dismissed as premature or specula-

tive. Unlike a grand jury proceeding, a civil case is

initiated by a formal complaint that must satisfy the

requirements of Article III. The precise nature of the

claim is stated “at the beginning” of the case, not at its

“conclusion.” Jd. at 282. And in the ordinary civil case,

unlike a grand jury proceeding, it can be determined at

the outset “whether the facts show a case within [the

court’s] jurisdiction.” Jd. at 283. Of course, if the

court’s jurisdiction is uncertain, the court has power to

order discovery to determine its jurisdiction. But when,

as in this case, it can be determined at the outset whether

the court has Article III power, there is nothing in Blair

that bars the witness from raising the issue, or that

disables the court from deciding it.”

II. THE DISTRICT COURT WAS WITHOUT ARTICLE

III POWER BECAUSE THE PLAINTIFFS LACKED

ARTICLE III STANDING

This Court’s prior standing decisions make clear that

Article III power is lacking in this case, and that the

contempt judgments therefore must be set aside. Indeed,

15 A recent decision underscores the limited scope of Blair, even

in the grand jury context. Jn re Sealed Case, 827 F.2d 776 (D.C.

Cir. 1987). Distinguishing the “speculativ[e]” challenge asserted

in Blair, the court held that a grand jury witness may defend

against a grand jury subpoena and subsequent contempt charge by

challenging the authority of the prosecutor to act. Jd. at 779. See

also In re Perlin, 589 F.2d 260 (7th Cir. 1978); In re Subpoena of

Persico, 522 F.2d 41 (2d Cir. 1975); DiGirlomo vy. United States,

520 F.2d 372 (8th Cir.), cert. denied, 423 U.S. 1033 (1975).

applying the court of appeals’ test, the claim of standing

here is not even “‘colorable.”

Lawsuits challenging the tax status of others “are

rarely if ever appropr‘ate for federal-court adjudica-

tion.” Allen v. Wright, 468 U.S. 737, 760 (1982). This

case dramatically illustrates why. None of the plaintiffs

here alleges that his own tax status is in jeopardy. None

wishes to change his tax status. None claims that he has

tried to do what he contends the Catholic Church does,

only to be threatened by the government. In short, none

alleges improper or unequal treatment at all by the gov-

ernment. Nevertheless, each of the plaintiffs attacks the

government’s treatment of some 30,000 Roman Catholic

Chureh entities, the vast majority of which are located

nowhere near the communities in which the plaintiffs

reside. Even if all of the plaintiffs’ allegations were

true, revoking the tax-exempt status of these Church

entities would not confer any benefit, or relieve any

burden, on the plaintiffs.

In fact, in the final analysis, a judgment in the plain-

tiffs’ favor in this case would accomplish virtually noth-

ing. The Catholic Church entities are not parties, and

would not be bound by any judgment. They have a stat-

utory right, which they would undoubtedly invoke, to

bring a separate declaratory judgment action to deter-

mine the legality of any revocation of their tax exemp-

tion. 26 U.S.C. § 7428. The issue of their eligibility for

tax-exempt status would be relitigated de novo. Thus,

the “controversy” over the tax-exempt status of the

Roman Catholic Church in the United States, if indeed

there is one, would not be resolved by this lawsuit. Any

judgment would serve, at most, as advice for the court

that would have to decide the controversy in litigation

between the only parties whom it concerns.

A. Unaffected Third Parties Lack Article III Standing

To Challenge the Tax-Exempt Status of Others

This Court has repeatedly insisted that “at an irredu-

cible minimum, Art. III requires the party who invokes

the court’s authority to show that he personally has suf-

fered some actual or threatened injury as a result of the

putatively illegal conduct of the defendant, and that the

injury fairly can be traced to the challenged action and

is likely to be redressed by a favorable decision.” Valley

Forge Christian College v. Americans United for Separa-

tion of Church and State, 454 U.S. 464, 472 (1982)

(citations omitted). “The injury alleged must be...

“ distinct and palpable,’”’ and not ‘abstract’ or ‘conjec-

tural’ or ‘hypothetical.’” Allen v. Wright, 468 U.S. at

751 (citations omitted). This Court has thus refused to

entertain a variety of suits premised only upon “the

value interests of concerned bystanders,” United States

v. SCRAP, 412 U.S. 669, 687 (1973), or upon “* ‘the

right, possessed by every citizen, to require that the Gov-

ernment be administered according to law.’” Valley

Forge, 454 U.S. at 482-83, quoting Fairchild v. Hughes,

258 U.S. 126, 129 (1922). See also Schlesinger v. Re-

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

United States v. Richardson, 418 U.S. 166 (1974); Ex

parte Levitt, 302 U.S. 633 (1937)."°

16 In Valley Forge, 454 U.S. at 482-85, and Allen v. Wright, 468

at 754-56, the Court made clear that it is Article III itself, not

merely the prudential limitations on standing, that bars suits

based on the generalized right to have the government act in

accordance with the law. But even if the principle were treated as

a prudential limitation, the witnesses here would be entitled to

raise it. The prudential limitations on standing are “closely re-

lated to Art. III concerns,” Warth v. Seldin, 422 U.S. 490, 500

(1975), and sufficiently “jurisdictional” that they must be con-

sidered by the court even if they are not raised by a party. See

Hodel v. Irving, 107 S.Ct. 2076, 2080 (1987). It necessarily follows

that those limitations may be raised by an alleged contemnor, who

is entitled to challenge the underlying order as “erroneously issued”

or “beyond the jurisdiction of the Court.” United Mine Workers,

330 U.S. at 295.

Based on these principles, this Court has twice re-

jected challenges to the tax-exempt status of third par-

ties, when the would-be plaintiff’s own tax status is not

in issue. In Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976), indigent persons chai-

lenged a revenue ruling that a non-profit hospital could

qualify for recognition as a charitable organization un-

der section 501(c) (3), even though it provided only

emergency room service to persons unable to afford hos-

pitalization. This Court acknowledged the plaintiffs’ in-

terest in obtaining hospital services, and even acknowl-

edged that some plaintiffs had been injured by the hos-

pitals in question. Jd. at 40-41. Nevertheless, the Court

held that those facts were insufficient to establish a case

or controversy with the Treasury, because the plaintiffs

had failed “ ‘to establish that, in fact, the asserted in-

jury was the consequence of the defendants’ actions, or

that prospective relief will remove the harm.’” Jd. at

45, quoting Warth v. Seldin, 422 U.S. at 505.

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

Court held that parents of black public school children

lacked standing to challenge the lawfulness of the IRS’s

grant of tax-exempt status to allegedly discriminatory

private schools. “|S|tigmatie injury, or denigration, suf-

fered by all members of a racial group when the Gov-

ernment discriminates on the basis of race” was insuffi-

cient to support standing, the Court held. Jd. at 754.

The plaintiffs also claimed that they had standing be-

cause the government’s administration of the tax laws

“diminished [their children’s] ability to receive an edu-

cation in a racially integrated school.” Jd. at 756.

The Court recognized the “serious” nature of that in-

jury, and “the constitutional importance of curing” it,

but held that the injury could not support standing be-

cause it was “not fairly traceable to” the challenged

granting of tax exemptions. /d. at 756-57. It was “en-

tirely speculative,” the Court explained, that any judg-

ment in the plaintiffs’ favor “would have a significant

impact on the racial composition of the public schools.”

Id. at 758.

Like the plaintiffs in Simon and Allen, the plaintiffs

here are unhappy because, they assert, the IRS has not

enforced section 501(c)(3) against others in the way

they would like. The injuries these plaintiffs allege, how-

ever, are more abstract than those asserted in Simon and

Allen. While those plaintiffs complained of the denial of

medical services, and of the opportunity for an inte-

grated education, these plaintiffs claim only some vague

impairment of their stakes as voters and clergymen who

oppose the Catholic Church’s religious teaching on abor-

tion. Allegations such as those made by the plaintiffs

here could be made by virtually anyone who disagrees

with the Catholic Church’s position on abortion—or, for

that matter, by virtually anyone who disagrees with the

statements of any religious organization on a _ broad

range of moral issues that confront the American pub-

lic. See fn. 13, supra. Under this Court’s precedents,

such allegations are insufficient to confer standing.

B. The Clergy Plaintiffs Lack “Establishment Clause

Standing”

The plaintiffs who are clergymen claim that the gov-

ernment’s alleged failure to enforce the tax code against

the Catholic Church violates their “sincere and deeply

held belief in the separation of church and state,” JA 45;

see also JA 52, and their “right to live in a society in

which no religion is favored or established by the state.”

JA 44; see also JA 54. These allegations, however, are

no different from the allegations rejected as an insuffi-

cient basis for standing in Valley Forge. In that case,

this Court held that citizens and taxpayers lacked stand-

ing under Article III to challenge the conveyance of sur-

plus federal property to a religious college. The Court

acknowledged the plaintiffs’ commitment to separation of

church and state, but heid that they

failfed] to identify any personal injury suffered by

them as a consequence of the alleged constitutional

error, other than the psychological consequence pre-

sumably produced by observation of conduct with

which one disagrees. That is not an injury sufficient

to confer standing under Article III, even though the

disagreement is phrased in constitutional terms.

454 U.S. at 485-86 (emphasis in original). Here, as in

Valley Forge, the plaintiffs “cannot . . . satisfy the re-

quirements of Art. III” by alleging injury to a general-

ized “right to a government that ‘shall make no law re-

specting the establishment of religion.’” Jd. at 482-83.

See also Allen, 468 U.S. at 754; Schlesinger v. Reservists

Committee to Stop the War, 418 U.S. at 217, 226-27.

The «strict court in this ease stated, however, that the

clergy p __‘iffs and the church-affiliated Women’s Cen-

ter for h -roductive Health had alleged a “spiritual in-

jury” flow:’g from “the tacit government endorsement

of the Ron. n Catholic Church position on abortion.”

Pet. A. 67a, *8a. Their beliefs were somehow “deni-

grated,” and th.» ministries “frustrate[d],” the district

court concluded . government endorsement of a [con-

trary] theology.” ..ot. A. 68a. The amended complaint

contains no such allegations of denigration or stigma,

however, and the affidavits of the clergy plaintiffs contain

only the vaguest of assertions on the subject.’’ Standing,

17 The affidavit of one clergy plaintiff states, for example, that

the IRS “seems to have done nothing about” instances in which

Catholic priests have “denounced candidates from the pulpit,” and

that the IRS’s failure to act

denigrates my standing and the standing of my religion in

the community. We are made to feel that we are second class

citizens because we are not permitted to violate the law with

impunity and because the government appears to consider our

views not to be as worthy of attention as those of the Catholic

Church. JA 44.

[Continued }

in any event, cannot be predicated upon the district

court’s conclusions for two reasons: (1) as a matter of

law, the plaintiffs have suffered no cognizable denigra-

tion or stigma; and (2) even if they have, they have not

alleged that it has resulted from their having been “per-

sonally denied equal treatment.” Allen, 468 U.S. at 755.

First, the IRS cannot be said to have “endorsed” the

Catholic Church’s view on abortion, tacitly or otherwise.

And it certainly has not made “an unequivocal statement

of preference” for the Catholic religion generally, as the

district court suggested. Pet. A. 69a. All churches rep-

resented by the plaintiffs—and countless other churches

as well—enjoy tax-exempt status under section 501(c) (3).

The allegation here is simply that the IRS has not ap-

plied the political activity limitation of section 501(c) (3)

against the Catholic Church in the manner that these

plaintiffs would like. Even if the plaintiffs’ allegations

are accepted as true, the IRS’s alleged failure to take the

demanded enforcement measures falls far short of an

“unequivocal” or even “tacit” “endorsement” of the Cath-

olie Church’s theology. Pet. A. 68a, 69a. The alleged en-

forcement failure could have been based on any of a

number of considerations—if, indeed, there has been a

conscious decision at all. As a matter of law, the failure

to revoke the Catholic Church’s tax exemption cannot be

said to stigmatize or denigrate non-Catholics.

The suggestion of stigma or denigration in this case

pales by comparison to the comparable allegation re-

jected in Allen. The plaintiffs in Allen complained of

racial discrimination, which historically has carried with

17 [Continued }

There is no suggestion anywhere, however, that any of the clergy

plaintiffs has been stopped from doing anything that Catholic clergy

have allegedly done. See note 18, infra.

Another clergy plaintiff states that “it appears that Catholic

doctrine is being favored by the government and, therefore, must

be more correct than my religion’s teachings.” JA 47.

it an undeniable mark of perceived inferiority. The al-

legation of stigma in Allen, while too generalized to sup-

port standing, was nonetheless genuine. By contrast, the

suggestion of “denigration” here is baseless.

Second, even if the clergy plaintiffs were assumed to

have suffered “stigma” as a result of the IRS’s treat-

ment of the Catholic Church, that “stigma” would not

support standing because it was not the result of any

action directed against the clergy plaintiffs personally or

even against their religions. In Allen, this Court em-

phasized that even when racial stigma is alleged, “|stig-

matic] injury accords a basis for standing only to ‘those

persons who are personally denied equal treatment’ by

the challenged discriminatory conduct.” 468 U.S. at 755

(emphasis added) (citation omitted).

The clergy plaintiffs in this case make no such claim.

They allege no enforcement or threatened enforcement of

the tax code against themselves personally or against

their churches. They do not allege that they have en-

gaged in activities similar to those allegedly engaged in

by Catholic Church entities, only to be denied tax exemp-

tions. Nor do they claim that they have been subjected

to any unequal or unfair treatment whatscever by the

IRS.** Indeed, the district court denied the plaintiffs what

it termed “equal protection standing” precisely because

“plaintiffs . . . do not assert that the code has been ap-

plied to them discriminatorily or that they have been de-

18 The clergy plaintiffs complain simply that they are “law-

abiding clergymen” who voluntarily “refrain from participating in

political campaigns for fear of losing the tax exemption of their

congregations and churches,” Amended Complaint § 42, JA 15-16,

while the Catholic Church does not. But that is not an allegation

that the IRS has subjected them to unequal or unfair treatment.

Nor is the mere allegation that one has refrained from violating

the law an allegation of injury that is cognizable under the law,

even if it is alleged that others have violated the law without

consequence.

nied some tax benefits to which they are entitled.” Pet.

A. 76a.

That same observation is fatal to the plaintiffs’ claim

of “Establishment Clause standing.” In Valley Forge

the Court explicitly rejected the notion “that enforcement

of the e:tablishment clause demands special exceptions

from the requirement that a plaintiff allege ‘distinct and

palpable injury to himself’ . .. that is likely to be re-

dressed if the requested relief is granted.” 454 U.S. at

488 (citations omitted) (emphasis added). The Court

also emphasized that a claimed “spiritual stake” in the

government’s alleged preference of a particular religion

cannot support standing unless the plaintiffs can show

that they were “ ‘directly affected by the laws and prac-

tices against which their complaints are directed.’” 454

U.S. at 486-87 n.22, quoting Abington School District v.

Schempp, 374 U.S. 203, 224 n.9 (1963) (emphasis

added) ."®

The plaintiffs here were not “directly affected” by the

IRS action against which their complaint is directed.

Ibid. Like the plaintiffs in Valley Forge, they can claim

nothing more than an abstract “spiritual stake” in block-

ing the conferral of a benefit on a religious group to

19 The district court thought that the clergy plaintiffs satisfied

this requirement of Valley Forge and Schempp because, in its

words, the IRS’s action had allegedly “diminish[ed] their position

in the community, encumber[ed] their calling in life, and ob-

struct[ed] their ability to communicate effectively their religious

message.” Pet. A. 95a-96a. But that is simply a more elaborate

way of saying that the clergy plaintiffs allegedly suffered stigma.

It does not establish that the clergy plaintiffs were “directly affected

by the [IRS action] against which their complaints are directed.”

Valley Forge, 454 U.S. at 487 n.22; Schempp, 374 U.S. at 224 n.9.

In Schempp, the plaintiffs could show they were directly affected by

the challenged laws and practices, “because impressionable school-

children were subjected to unwelcome religious exercises or were

forced to assume special burdens to avoid them.” Valley Forge,

454 U.S. at 487 n.22. There is no comparable claim here.

which they do not belong.” Whether the spiritual injury

is described as a preference for one religion or denigra-

tion of others, it is insufficient to support standing. As

this Court explained in Valley Forge, if such a claim

were sufficient, then “any person asserting an [stablish-

ment Clause violation possesses a ‘spiritual stake’ suffi-

cient to confer standing.” 454 U.S. at 486 n.22.

Allowing these clergy plaintiffs to sue the IRS when

they themselves have not been “directly affected” by the

IRS’s actions, Valley Forge, 454 U.S. at 487 n.22, or

“personally denied equal treatment,” Allen, 468 U.S. at

755, would have precisely the same consequences that the

Court feared in Allen. “If the abstract stigmatic injury

[asserted here and ir Allen] were cognizable, standing

would extend nationwide to all members of the. . .

groups” that feel denigrated. 468 U.S. at 755-56.*! This

case proves the Court’s point. A minister in New York

is challenging the tax exemption of the Archdiocese of

San Antonio, Texas, and a women’s center in Jackson-

ville, Florida is contesting the government’s alleged fail-

ure to monitor a parish priest in South Dakota. JA 7,

12. As the Court noted in Allen, “[r]ecognition of stand-

ing in such circumstances would transform the federal

courts into ‘no more than a vehicle for the vindication of

the value interests of concerned bystanders.’” Id. at

756, quoting United States v. SCRAP, 412 U.S. at 687.

C. Plaintiffs Have No “Voter Standing”

Plaintiffs claim no cognizable personal injury as voters,

much less one that is “fairly traceable” to the IRS’s con-

duct and “likely to be redressed” by judicial action.

20 The plaintiffs in Valley Forge were not clergy members, but

surely the result would have been no different if they had been.

As the Court noted, standing “is not measured by the intensity of

the litigant’s interest or the fervor of his advocacy.” 454 U.S. at

486.

21In many, if not most, Establishment Clause cases, the allegedly

“stigmatized” groups would include a majority of the population.

1. Plaintiffs Have Suffered No Cognizable Injury

as Voters

Unlike the plaintiffs in Baker v. Carr, 369 U.S. 186

(1962), plaintiffs do not allege any diminution in their

representation. Nor do they allege gerrymandering,

ballot-box-stuffing, outright denial of their right to vote,

or anything that dilutes the strength of their votes.**

The plaintiffs therefore lack standing as “voters.”

Nor do the plaintiffs acquire standing by presenting

themselves more broadly as participants in the political

process. At most, they can speculate that others might

freely choose to vote against their preferred candidates

based on information disseminated in the course of po-

litical debate, and that their candidates might actually

be defeated. But that is not a cognizable injury; it is the

essence of the democratic process. The injury is also en-

tirely speculative; it can be neither proved nor disproved.

Perhaps for that reason the plaintiffs do not make the

claim that the alleged political activity of the Church has

affected any particular election or even the total number

of pro-abortion representatives.”

As the district court noted, plaintiffs allege simply that

there is a “distortion in the political process” that some-

how entitles them to challenge the Church’s tax exemp-

tion, regardless of whether the distortion is likely to af-

fect the outcome of any election. Pet. A. 73a. The plain-

tiffs, in the district court’s words, allege that “members

of the public have greater incentive to donate funds to

the Roman Catholic Church than to politically active

abortion rights groups and .. . each dollar contributed

22 See, e.g., Davis v. Bandemer, 106 S. Ct. 2797 (1986); Karcher

Vv. Daggett, 462 U.S. 725 (1983); Wiley v. Sinkler, 179 U.S. 58

(1900) ; cf. United States v. Saylor, 322 U.S. 385 (1944).

*3 As the district court noted, the claimed injury is “not actual

loss of representatives vis-a-vis other groups” Pet. A. 75a n.10.

\ 37

to the church is worth more than one given to non-

exempt organizations.” Pet. A. 73a.

The plaintiffs, however, are not recipients of campaign

contributions alleging that their receipts have been ad-

versely affected. They are voters and campaign con-

tributors.** And they do not contend that their own con-

tributions to political candidates ought to be tax deduct-

ible. They affirmatively disclaim that notion. Thus, the

plaintiffs do not allege that they are being fizancially in-

jured. They allege only that the Catholic Church is being

financially benefited. And that allegation—that the gov-

ernment has improperly conferred a benefit upon a third

party—is precisely the kind of claim that was rejected

as an insufficient basis for standing in Valley Forge.

However it is described, the “distortion in the political

process” alleged here is simply not a “distinct and palp-

able injury” to those who participate in the process as

voters and contributors. Warih v. Seldin, 422 U.s. at

501. Such a “distortion” is no less abstract than the dis-

tortion of the legislative process found insufficient to sup-

port standing in Schlesinger v. Reservists Committee to

Stop the War, supra. In that case, citizens complained

that allowing Armed Forces Reserve members to sit in

Congress violated the Incompatibility Clause of the Con-

stitution, which states that “no Person holding any Of-

fice under the United States, shall be a Member of either

House during his Continuance in Office.” U.S. Const.,

Art. 1, $6, cl.2. The alleged injury was a distortion of

the legislative process in the form of “undue influence

by the Executive Branch” on Reservist Members of Con-

gress. 418 U.S. at 212. That distortion of the legislative

24 The district court held that the organizational plaintiffs had

standing as representatives of their voter members. Pet. A. 70a

n.9, 91a.

process, the Court held, although concededly a matter in

which citizens have “an interest,’ was “too abstract to

constitute a ‘case or controversy’ appropriate for judicial

resolution.” Jd. at 226-27.”

The same conclusion holds true here.** If the plaintiffs

here could establish standing merely by alleging a dis-

tortion of the political process, then voters and contribu-

tors could challenge not only a great many IRS decisions,

but virtually all Federal Election Commission decisions.

The interest of the individual citizen in those decisions,

however, is no greater than the generalized interest of

the citizenry in “hav[ing] the Government act in accord-

ance with law’’—an interest that “ ‘cannot alone satisfy

the requireinents of Art. III without draining those re-

quirements of meaning.’” Allen, 468 U.S. at 754, quot-

ing Valley Forge, 454 U.S. at 483.

25 The fact that the distortion of the legislative process might

have impaired the effectiveness of the plaintiffs’ own political ac-

tivity—their lobbying to end the Vietnam war was allegedly frus-

trated by the presence of Reserve officers in the Congress—did not

make a difference. The district court rejected the claim of standing

based on the plaintiffs’ political activity in opposition to the war,

and the plaintiffs did not challenge that ruling in this Court. 418

U.S. at 210 n.1, 211, 216.

26 The allegations here are also analogous to the allegation of

“competitive injury, stemming from a systematic distortion of the

marketplace,” found insufficient to support a third-party tax chal-

lenge in American Society of Travel Agents v. Blumenthal, 566 F.2d

145 (D.C. Cir. 1977), cert. denied, 435 U.S. 947 (1978). See id. at

159 (Bazelon, J., dissenting). A group of travel agents sued to

revoke the tax-exempt status of the American Jewish Congress for

engaging in competitive business activity allegedly prohibited by

$501(¢e)(3). The court found the allegation that the government

had conferred an “unfair competitive advantage” on the tax-exempt

organizations too “abstract” to constitute a “judicially cognizable

‘injury in fact.’” Jd. at 148-49. See also Khalaf v. Regan, 85-1 U.S.

Sept. 19, 1986) (unpublished opinion) (individuals and non-exempt

political advocacy groups lack standing based on claim that tax-

exempt status accorded to Jewish organizations disadvantaged them

in pursuit of their political objectives).

2. Plaintiffs’ Claimed Injury Is Neither “Fairly

Traceable” to the IRS Nor Likely To Be Re-

dressed by the Requested Relief

To the extent that the plaintiffs claim that the Church’s

alleged political activity has impaired their own ability

to accomplish their political objectives, they encounter the

same barrier as the plaintiffs in Simon and Allen:

From the perspective of the IRS, the iniury to re-

spondents is highly indirect and “results from the

independent action of some third party not before

the court... .”

468 U.S. at 757, quoting Simon v. Eastern Kentucky

Welfare Rights Organization, 426 U.S. at 42. The IRS

has not directly impaired the plaintiffs’ political efforts;

if anyone is alleged to have done so, it is “a third party

not before the court,” the Catholic Church. Jbid. And

even the Church’s alleged activities could have had only

an indirect and speculative effect upon the plaintiffs’

own political efforts.

In Allen, this Court held that the plaintiffs’ alleged in-

jury was not “fairly traceable” to the government, be-

cause it was “entirely speculative . . . whether with-

drawal of a tax exemption from any particular school

would lead the school to change its policies.” 468 U.S.

at 758. It was “just as speculative whether any given

parent would decide to transfer [his or her] child to

public school” as a result of the school’s loss of its tax-

exempt status. Jbid. It was also “pure speculation”

whether a sufficiently large number of such decisions

would be made to have a “significant impact on the racial

composition of the publie schools.” Jbid.

Similarly, in Simon, the Court foun” it “purely specu-

lative” whether the alleged denial of medica’ services to

indigents “fairly can be traced to [the IRS’s action] or

instead result from decisions made by the hospitals with-

out regard to the tax implications.” 426 U.S. at 42-43.

It was “equally speculative” whether a judgment against

the IRS would cause the hospitals to provide more free

services or instead to forego their tax exemptions. /d.

at 43. Thus, the plaintiffs failed “ ‘to establish that, in

fact, the asseited injury was the consequence of the de-

fendants’ actions, or that prospective relief [would] re-

move the harm.’” Jd. at 45, quoting Warth v. Seldin,

422 U.S. at 505. See also Linda R.S. v. Richard D.,

410 U.S. 614, 618 (1973) (mother lacked standing to

challenge non-prosecution of father for failure to pay

child support, because it was “only speculative” that

prosecution would result in payment of support).

Here too, “[s]peculative inferences are necessary to

connect [the plaintiffs’ alleged] injury to the challenged

actions of [the IRS].” Simon, 426 U.S. at 45. It is spec-

ulative whether, or to what extent, the Church’s donors

would reduce their contributions if the Church’s tax ex-

emption were revoked. As plaintiffs themselves allege,

contributions to the Church are “religiously-compelled,”

JA 16; therefore, they may be not responsive to tax pres-

sure. It is equally speculative whether the Church would

decide to stop the religiously-motivated activities that

are under attack, such as “hand[ing] out ‘right-to-life’

leaflets with ... church bulletin[s].” JA 13.

Finally, it is speculative in the extreme whether all of

the foregoing would lead to fewer pro-life votes. In Win-

pisinger V. Watson, 628 F.2d 133, cert. denied, 446 U.S.

929 (1980), the U.S. Court of Appeals for the D.C.

Circuit held that supporters of Senator Edward Kennedy

for the Democratic presidential nomination lacked stand-

ing to claim that members of President Carter’s admin-

istration had illegally spent federal funds to promote the

*7 See note 13, supra, and accompanying text. Even if the Church

were to cease any activity that it is now engaged in, it is specula-

tive to suggest that its members would not feel an obligation to

fill the void.

President’s renomination. The plaintiffs’ alleged harm

was “the dilution of their efforts on Senator Kennedy’s

behalf by the actions of the federal defendants in utiliz-

ing the vast resources available to the Administration

to promote President Carter’s quest for renomination.”

Id. at 1388. The Court held that there was no fairly trace-

able causal connection between the claimed injury and

the challenged conduct. Its explanation is fully appli-

cable here:

The endless number of diverse factors potentially

contributing to the outcome of state presidential pri-

mary elections, caucuses and conventions forecloses

any reliable conclusion that voter support of a can-

didate is ‘fairly traceable’ to any particular event.

In the case before us, whether [a plaintiff] is viewed

in the character of a voter, contributor, a noncon-

tributing supporter or a candidate for a delegate

post, a court would have to accept a number of very

speculative inferences and assumptions in any en-

deavor to connect his alleged injury with activities

attributed to [the defendants]. Courts are powerless

to confer standing when the causal link is too ten-

uous.

Id. at 139, citing Linda R.S. v. Richard D., 410 U.S. at

618 (1972), and Simon, 426 U.S. at 45.

Plaintiffs effectively concede that it would be specula-

tive to suggest that a judgment in their favor would alter

the Church’s conduct, much less result in the election of

more pro-abortion candidates. They profess indifference

to whether the Church modifies its alleged political ac-

tivities in any way. “It is irrelevant,” they assert,

“whether the Church will continue to be active politically

or if its members will increase their donations.” Re-

spondents’ Brief in Opposition at 54. If, however, a judg-

ment against the IRS would not alter the alleged political

activities of the Church and its contributors, then the

plaintiffs would gain nothing other than the psychological

pleasure of knowing that the Church has lost its exemp-

tion. But that sort of satisfaction, this Court has made

clear, is insufficient to support standing. Allen, 468 U.S.

at 754; Valley Forge, 454 U.S. at 482-87; Schlesinger,

418 U.S. at 217, 226-27.**

In sum, the plaintiffs have failed to allege any distinct

and palpable personal injury that is fairly traceable to

the IRS’s actions and likely to be redressed by a favor-

able decision.

D. The Doctrine Of Separation Of Powers And Re-

lated Prudential Concerns Preclude Standing

As in Allen, this Court “could not recognize respond-

ents’ standing in this case without running afoul of [a

basic] structural principle’—namely, that “[t]he Con-

stitution .. . assigns to the Executive Branch, and not to

the Judicial Branch, the duty to ‘take Care that the Laws

be faithfully executed.’ U.S. Const., Art. II, § 3.” 468

U.S. at 761.°° Enforcement decisions are “the special

province of the Executive Branch.” Heckler v. Chaney,

470 U.S. 821, 832 (1985). Even to require the IRS to

investigate the tax status of the 30,000 Church entities

involved in this case would result in the diversion of

government resources from enforcement efforts that

28 There is an additional reason why a judgment in this case

would not alter the conduct of the Church or its contributors,

and why the plaintiffs’ alleged injury is not “likely to be redressed

by the requested relief” in this case. Allen, 468 U.S. at 751. As

noted above, at p. 27, even if the plaintiffs were to prevail, the

Church entities, who are not parties in this case, would be entitled

to litigate their tax-exempt status de novo in a separate declaratory

judgment action under 26 U.S.C. § 7428. Even if that did not

affect the plaintiffs’ Article III standing, the inevitable duplication

of judicial effort would present a prudential reason for declining to

exercise the judicial power in this case. See note 16, supra.

29 Even if the considerations discussed in this section do not

establish an outright violation of the separation of powers doctrine,

they present a prudential reason for declining to recognize the

plaintiffs’ standing. See note 16, supra; Valley Forge, 454 U.S. at

474-75.

would otherwise have been given a higher priority. See

ibid. That intrusion of the courts into the law enforce-

ment activities of the Executive Branch would itself

undermine the constitutional separation of powers.

To require the IRS actually to take action against

these Church entities would be an even greater intrusion

into the prerogatives of the Executive, for “an agency’s

decision to... enforce .. . is a decision generally com-

mitted to an agency’s absolute discretion. Jd. at 831

(citations omitted). Absent an allegation that the gov-

ernment has failed “to enforce specific legal obligations

whose violation works a direct harm,” the courts are not

empowered to second-guess the Executive Branch’s en-

forcement activities. Allen, 468 U.S. at 761; see Linda

R.S. v. Richard D., 410 U.S. at 619 (“a private citizen

lacks a judicially cognizable interest in the prosecution

or nonprosecution of another’’).

Congress has delegated “the administration and en-

forcement of” the tax laws—including the power to “pre-

scribe all needful rules and regulations”—to the Secre-

tary and the Commissioner. 26 U.S.C. §§ 7801(a),

7805(a). Congress itself exercises oversight through the

Joint Committee on Taxation. See 26 U.S.C. §§ 8001-

8023. And while the courts obviously play an important

role in the enforcement of the Code, their role is gen-

erally limited to resolving controversies that arise be-

tween a taxpayer and the IRS. See 26 U.S.C. §§ 6212-13,

6532, 7422: 28 U.S.C. § 1846. Indeed, when Congress au-

thorized declaratory judgment actions for determina-

tions of an organization’s eligibility for a tax-exemption

under section 501{c) (3), it expressly provided that such

an action “may be filed only by the organization the

qualification or classification of which is at issue.” 26

U.S.C. § 7428(b) (1); see also 28 U.S.C. § 2201(a).*”

%° The district court dismissed the plaintiffs’ claim for declaratory

relief based on 26 U.S.C. § 7428 and 28 U.S.C. § 2201. Pet. A. 87a-

IRS determinations to grant tax-exempt status to an

organization involve numerous discretionary judgments

that are, as a general matter, inappropriate for judicial

review at the behest of a mere bystander. There are, for

example, six pages of regulations governing the threshold

determination of whether an organization has a proper

purpose within the meaning of section 501(c) (3). See

26 C.F.R. § 1.501(e) (3)-1 (1987). Implementation of

the political activity limitation is itself a matter of con-

siderable complexity.*' For example, the IRS has deter-

mined that it is permissible for an exempt organiza-

tion to publish voter guides stating the position of in-

cumbents on a wide range of issues, or to distribute

questionnaires to candidates on such issues. Rev. Rul.

78-248, 1978-1 C.B. 154. The Service has stated, how-

ever, that voter guides or questionnaires are impermis-

sible if they “{e]vidence a bias on certain issues,” or

concentrate on a “narrow range of issues,” even if not

expressly stating support for, or opposition to, any candi-

date. Ibid. See also Rev. Rul. 80-282, 1980-2 C.B. 178.

9la. But the court rejected the argument of the government and

USCC/NCCB that the plaintiffs’ claim for injunctive relief was

barred by those provisions, as well as the Anti-Injunction Act, 26

U.S.C. § 7421(a). Ibid. This Court left those questions open in

Simon V. Eastern Kentuc, Welfare Rights Organization, 426 U.S.

at 34-35, 37, and Bob Jones University v. Simon, 416 U.S. 725, 732-

33 n.7 (1974).

31 A House Subcommittee recently found that the lobbying and

political activity restrictions have

given rise to a set of complex and at times inexact rules that

are difficult to comply with and administer. The rules are

complex because there are different rules for different types of

organizations. The rules are sometimes inexact because of the

imprecise definitions of lobbying and political activity. For

example, it is often very difficult to distinguish lobbying or

political activity from educational activity.

Subcommittee on Oversight of the Committee on Ways and Means,

U.S. House of Representatives, 100th Cong., Ist Sess., Report and

Recommendations on Lobbying and Political Activities by Taz-

Exempt Organizations 37 (Comm. Print 1987).

In applying section 501(c) (3), the IRS has developed

a body of experience and expertise to which the courts

owe deference.** An IRS judgment not to take enforce-

ment action based on alleged violations of the require-

ments of section 501(c) (3) is generally “unsuit[ed] for

judicial review” for precisely the reasons stated in Heck-

ler v. Chaney, 470 U.S. at 821:

{Ajn agency decision not to enforce often involves

a complicated balancing of a number of factors

which are peculiarly within its expertise. Thus, the

agency must not only assess whether a violation has

occurred, but whether agency resources are best

spent on this violation or another, whether the

agency is likely to succeed if it acts, whether the

particular enforcement action requested best fits the

agency’s overall policies, and indeed, whether the

agency has enough resources to undertake the action

at all. An agency generally cannot act against each

technical violation of the statute it is charged with

enforcing. The agency is far better equipped than

the courts to deal with the many variables involved

in the proper ordering of its priorities. Jd. at 831-

32.%8

There are finally, additional reasons not to permit

third-party tax challenegs to the tax status of a church.

Recognizing the First Amendment rights at stake, Con-

gress has imposed strict limits on church tax inquiries

and examinations. 26 U.S.C. § 7611.%* An inquiry may

32 Cf. National Muffler Dealers Ass’n Vv. United States, 440 U.S.

472, 476-77 (1979); Bingler v. Johnson, 394 U.S. 741, 748-51

(1969).

33 Heckler v. Chaney did not involve constitutional standing,

but the reviewability of an agency’s decision under the Administra-

tive Procedure Act, 5 U.S.C. § 701. Nevertheless, the Court’s view

of the appropriate role of the federal courts in reviewing agency

enforcement decisions is fully applicable to the separation-

of-powers/standing analysis required by Allen.

34 See H.R. Conf. Rep. No. 861, 98th Cong., 2d Sess. 1101-1114

(1984), reprinted in 1984 U.S. Code Cong. & Admin. News 1445,

1789-1802.

be begun only if “an appropriate high-level Treasury offi-

cial reasonably believes (on the basis of facts and cir-

cumstances recorded in writing)” that the church may

not be exempt or is engaged in an unrelated trade or

business. 26 U.S.C. § 7611(a) (2). The church must be

given advance notice of the inquiry and an opportunity

to meet with the Secretary before any examination of

church records. 26 U.S.C. § 7611(a)(3). Church rec-

ords may be examined “only . . . to the extent necessary

to determine” any tax liaoility. 26 U.S.C. § 7611(b)

(1). Church tax inquiries and examinations must be

completed as a general rule within two years. 26 U.S.C.

§ 7611(c). And no revocation of a church’s tax exempt

status may occur unless the regional counsel approves the

revocation in writing and determines in writing that

there has been substantial compliance with the require-

ments of section 7611.

Notwithstanding this elaborate statutory framework

for the conduct of church tax inquiries and examina-

tions, the plaintiffs would have a single district court

judge launch a broad investigation into the tax-exempt

status of some 30,000 Catholic Church entities through-

out the United States. he court would presumably ex-

amine why the IRS has not taken enforcement action and

whether, despite the IRS’s judgment not to take action,

those Catholic Church entities should lose their tax ex-

emptions because some of them are alleged by private

parties, “upon information and belief,” to have crossed

the line separating permissible from impermissible polit-

ical activity.

Quite apart from the burden such a task would impose

on the courts and the IRS, the nature of the task is

such that it should not be undertaken at the behest of

%5 This provision would appear to impose stricter limits upon the

examination of church records than the Federal Rules of Civil

Procedure would impose upon these plaintiffs if this case were

allowed to proceed.

these plaintiffs. Monitoring the IRS’s performance in

implementing and enforcing section 501(¢}{3) of the

tax Code “is appropriate for the Congress acting through

its committees ... ; it is not the role of the judiciary,

absent actual present or immediately threatened injury

resulting from unlawful action.” Laird v. Tatum, 408

U.S. 1, 15 (1972). In this case, the plaintiffs point to

no injury that is sufficient to warrant the extraordinary

judicial undertaking that they seek. They are, therefore,

without standing.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

EDWARD BENNETT WILLIAMS

KEVIN T. BAINE *

RICHARD S. HOFFMAN

KEVIN J. HASSON

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

MARK E. CHOPKO

General Counsel

PHILLIP H. HARRIS

Solicitor

Of Counsel: United States Catholic

WILLIAMS & CONNOLLY Conference

839 17th Street, N.W. 1312 Mass. Ave., N.W.

Washington, D.C. 20006 Washington, D.C. 20005

(202) 331-5000 (202) 659-6690

* Counsel of Record Counsel for Petitioners

January 28, 1988

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.