# Respondents Brief — United States Catholic Conference v. Abortion Rights Mobilization, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0713%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1988 - **Citation:** 487 U.S. 72 ## Text 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) ii 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 12 14 18 iv 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 bo 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.. bo D. The Doctrine Of Separation Of Powers And Related Prudential Concerns Preclude Stand- Page 20 21 22 26 39 47 v 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 vi 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. 2 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 3 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. 4 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). 5 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- 6 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. 7 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. 8 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. 9 632, 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. 10 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 11 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 12 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, 13 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. 14 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. 15 330 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- 16 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. 17 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