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

Suprema Court, U.S,

FILED

No. 87-416 JAN 28 1988

In The . SPAN ,

Supreme Court of the United Staten: a

October Term, 1987

O

UNITED STATES CATHOLIC CONFERENCE

and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

Petitioners,

V.

ABORTION RIGHTS MOBILIZATION, INC...

and

JAMES A. BAKER, III], SECRETARY OF THE TREASURY, and

LAWRENCE B. GIBBS, COMMISSIONER OF INTERNAL REVENUE,

Respondents.

——___ - —

On Certiorari to the Court of Appeals for the Second Circuit

O-

BRIEF AMICUS CURIAE OF THE NATIONAL COUNCIL OF

CHURCHES OF CHRIST IN THE U.S.A., THE AMERICAN

JEWISH CONGRESS, JAMES E. ANDREWS AS STATED CLERK

OF THE GENERAL ASSEMBLY OF THE PRESBYTERIAN

CHURCH (U.S.A.), THE BAPTIST JOINT COMMITTEE ON

PUBLIC AFFAIRS, THE CATHOLIC LEAGUE FOR RELIGIOUS

AND CIVIL RIGHTS, THE CHURCH OF JESUS CHRIST OF

LATTER-DAY SAINTS, THE LUTHERAN CHURCH-MISSOURI

SYNOD, THE NATIONAL ASSOCIATION OF EVANGELICALS,

THE SYNAGOGUE COUNCIL OF AMERICA, AND THE

WORLDWIDE CHURCH OF GOD, IN SUPPORT OF PETI-

TIONERS

————— O—

EDWARD McGLYNN GAFFNEY, IR.

ASSOCIATE PROFESSOR OF LAW

LOYOLA LAW SCHOOL

1441 WEST OLYMPIC BLVD.

LOS ANGELES, CA 90015

(213) 736-1157

COUNSEL OF RECORD)

Of Counsel:

DOUGLAS LAYCOCK

PROFESSOR OF LAW

727 FAST 26th STREET

AUSTIN, TX 78705

(512) 471-3275

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

or call collect (402) 342-2831

‘ Nyt eee 2

ee

QUESTIONS PRESENTED

Whether an order holding a major religious body in

civil contempt and imposing substantial fines for refusal

to comply with massive discovery requests for sensitive

internal church records should be vacated for want of sub-

ject matter jurisdiction because the plaintiffs lack stand-

ing, either as voters or as members of the clergy, to chal-

lenge directly the tax-exempt status of the religious body.

Whether a major religious body held in civil contempt

may be denied standing as a witness to challenge the

underlying jurisdiction of the federal court that ordered

the discovery that triggered the contempt citation, on the

view that ‘‘colorable’’ jurisdiction suffices to postpone

consideration of the church’s jurisdictional challenge until

the requested discovery of the church’s records is com-

pleted and the underlying action to revoke the tax-exempt

status of the church is decided on the merits.

il

TABLE OF CONTENTS

PAGE(S)

7anee OF AUTHORS iv

STATEMENT OF INTERESTS OF AMICI

EER ETL SSC 1

SUMMARY OF ARGUMENT 3

ARGUMENT

l. THE SENSITIVE TASK OF REVOCATION OF

THE TAX-EXEMPT STATUS OF A NOT-FOR-

PROFIT RELIGIOUS ORGANIZATION SHOULD

NOT BE ENTRUSTED TO PRIVATE THIRD

PARTIES WHO MAY ACT MERELY BECAUSE

THEY DO NOT AGREE WITH THE RELIGIOUS

MESSAGE OF THE ORGANIZATION 20

A. The District Court Erred in Conferring Standing

on the Private Respondents (Plaintiffs Below) to

Challenge the Exempt Status of a Major Religious

Organization on the Grounds that the Plaintiffs are

either Voters or Members of the Clergy 000000000000.

(i) Voter standing ...... a Acne dacceaclagarceaainiihcnnonen

on scseusumsmeinninioaboeniennnen

B. The Private Respondents Lack Statutory Stand-

ing because Congress Has Entrusted to the Federal

Respondents the Sensitive Task of Granting and Re-

voking the Tay exempt Status of Charitable Organi-

zations ....... ER ae a a nels

Il. WHERE A MAJOR RELIGIOUS BODY IS

HELD IN CIVIL CONTEMPT AS A WITNESS IN

EXEMPTION-REVOCATION PROCEEDINGS LNT-

TIATED BY OUTSIDERS HOSTILE TO ITS

MESSAGE ON A MATTER OF PUBLIC CON-

CERN, THE CHURCH HAS STANDING TO SEEK

APPELLATE REVIEW OF THE UNDERLYING

JURISDICTION OF THE DISTRICT COURT TO

ORDER DISCOVERY OF SENSITIVE INTERNAL

DOCUMENTS

10

14

19

ill

TABLE OF CONTENTS—Continued

PAGE(S)

Il. RELIGIOUS FREEDOM IS THREATENED

WHEN FEDERAL COURTS DENY ANY MEAN-

INGFUL REVIEW OF SUBSTANTIAL FINES

IMPOSED ON A CHURCH FOR REFUSING TO

DISCLOSE SENSITIVE INTERNAL DOCU-

MENTS RELATING TO PASTORAL PLANS FOR

CONSTITUTIONALLY PROTECTED MORAL AD-

VOCACY ON MATTERS OF PUBLIC CONCERN

A. Communicating sincerely held religious convictions

on matters of public concern is protected activity .

B. The massive scope of requested discovery threat-

ens the autonomy of religious organizations —00.......

C. The penalties imposed on the petitioners are ex-

cessive because certification is an equally effective

alternative less restrictive of religious autonomy .........

See

TT sacdiinninapieiiiteton dicahesbisenocespsinte App.

iv

TABLE OF AUTHORITIES

PAGE(S)

Cases CITED:

Abortion Rights Mobilization, Inc. v. Regan, 544

F. Supp. 472 (S.D.N.Y. 1982) .... Feces 6

Abortion Rights Mobilization, Inc. v. Regan, 603

ee Bg 8 | Re ere 1}

Allen v. Wright, 468 U.S. 737 (1984) ....6, 8, 11, 13, 16, 27

American Society of Travel Agents, Inc. v. Blum-

enthal, 566 F.2d 145 (D.C. Cir, V9T7) nccecccscssseoesesceeeneeel 6, 17

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) 200... 28

Baker v. Carr, 369 U.S. 186 (1962) 0... i

Bemis Pentecostal Church v. State, — Tenn. —,

731 S.W. 2d 897 (1987), app. pending, No. 87-517. .- 22

Bender «. Williamsport Area School Dist., 475

U.S. 554 (1986)... seed eaaeeeeathaieaal 19

Blair v. United States, 250 U.S. 273 (1919) 20

Bob Jones University v. United States, 461 U.S.

d74 (1983). ...... sais sakaceisiacesnelodtiiaiaramadaela eaaiiedkaaetleteronaaal ae ae

Cammarano v. United States, 358 U.S. 498 (1959) 12

Christian Echoes National Ministry, Inc. v. United

States, 470 F.2d 849 (10th Cir. 1972) ................ 12

First National Bank of Boston v. Bellotti, 485

of 4% Fy | Ree aaa : m 23

Flast v. Cohen, 392 U.S. 83 (1968) 000... . 14

Heckler v. Chaney, 470 U.S. 821 (1985) a 16, 20

Hobhic v. Unemployment Appeals Commission,

480 U.S. —, 107 S.Ct. 1046 (1987) 22, 28

In re United States Catholic Conference, 824 F. 2d

156 (2d Cir. 1987) | | 19

Khalaf v. Regan, 85-1 U.S. Tax Case Par. 9269

(D.D.C. 1985) iia pane 7

ee

TABLE OF AUTHORITIES—Continued

PAGE(S)

McDaniel ©. Paty, 435 U.S. 618 (1978) occ ccesessssseeeee 23

National Muffler Dealers Ass’n., Inc. v. United

EO eee 16

New York Times v. Sullivan, 376 U.S. 254 (1964) .......... 23

Regan v. Taxation With Representation, 461 U.S.

I I ca ailing 12

Schlesinger v. Reservists Committee to Stop the

War, 418 U.S. 208 (1974) 00. SECM i ag W/ ile de 6, 10

Sherbert v. Verner, 374 U.S. 398 (1963) 0. saody 20

Simon v. Eastern Kentucky Welfare Rights Orgq.,

ee 6, 7, 8, 13

Speiser v. Randall, 357 U.S. 513 (1958) cesses 22

Tax Analysts and Advocates v. Blumenthal, 566

i EM RIG SED asvcincesscosbasisnsseiesetasnavembizeiadinombcicic 16

Thomas v. Review Board, 450 U.S. 707 (1981) ............. 22, 28

United States v. Richardson, 418 U.S. 166 (1972) .......... 6

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

Valley Forge Christian College v. Americans

United for Separation of Church and State, 454

SPIE: SOUR: MUNIN <assvcscscisbaestibsesncdiasiacstedimeiicermeiacnemouniabeans 6, 10, 11, 15

Walz v. Tax Commission, 397 U.S. 664 (1970) .......... 12, 13, 21

Widmar v. Vincent, 454 U.S. 263, (1981) 23

Wisconsin v. Yoder, 406 U.S. 205 (1972) oo. . 28

STATUTES AND ADMINISTRATIVE REGULATIONS CITED:

LR.C. § 501 (6) (B) ccc 7, 12, 13, 15, 18, 21, 23, 25

vi

TABLE OF AUTILTORITIES—Continued

PAGE(S)

AMER rata tee eerenen eo ora ra I RACrE RAAB ASSN eR Se 15

LR.C. § 7421(a) 15

as 15

LR.C. § 7801(a) 15

El FR at AE I CSN ON ee OR 15

I A NN cs a

Tax Reform Act of 1976, § 1307(b)(3), 90 Stat. 1722. 12

OTHER SOURCES:

Caron and Dessingue, ‘“‘L.R.C. § 501(e)(5):

Practical and Constitutional Implications of

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

Polities 169 (1985) 93

J. Ely, Democracy and Distrust (1980) 10

Influencing Legislation by Public Charities, 94th

Cong., 2d Sess. (1976) 25

D. Kelley, ed., Government Intervention in Reli-

E:T 17

Laycock, ‘‘Towards a General Theory of the Re-

ligion Clauses,’* 81 Colum.L.Re. 1373 (1981) 18

Legislative Activity by Certain Types of Exempt

Organizations, 92d Cong., 2d Sess. (1972) .

24, 25

ee ee

STATEMENT OF INTERESTS

Amici curiae are major religious bodies in the United

States or membership organizations concerned with the

preservation of religious freedom. This brief is directed

to the profound implications of this case for religious free-

dom. Every aspect of this case, including the substanti: e

theory of the plaintiff’s case, threatens core values of the

Religion Clause. The autonomy and integrity of all re-

ligious bodies is threatened by conferring standing on

private parties hostile to the moral teaching of a target

church to litigate to revoke the exempt status of that re-

ligious body. (Part I, izfra). The freedom of religious

bodies is likewise threatened by denying appellate stand-

ing to a church held in civil contempt until the discovery

of its internal records has been completed by hostile out-

siders and a decision has been reached on the merits of the

claims of these outsiders. (Part Il, infra). Indeed, re-

ligious freedom suffers from the very court orders that

the church is attempting to appeal in this case, for those

orders purport to compel massive discovery of sensitive

internal church records by ideological opponents of the

church and to enforce the discovery order by a contempt

citation imposing coercive fines on the church for its re-

fusal to comply with the discovery order. (Part IIT, infra).

From beginning to end, this case is a First Amendment

nightmare. Amici hold widely varying views on the ethics

of abortion, but are in concerted agreement on these First

Amendment issues.

These First Amendment issues are adequately pre-

served in the record of this case. he petitioners, how-

ever, have chosen to present this case to this Court pri-

marily as a technical matter of standing, without focusing

in detail on the claims arising under the Religion Clause.

This Court may decide the case as the petitioners have

presented it, but amici urge that it consider the standing

issues in light of First Amendment considerations set forth

in this brief. In a case so pervaded with sensitive issues

arising under the Religion Clause, there is an enormous

risk of dictum which may later be taken to preclude or

limit further consideration of these issues. This brief in-

forms this Court of the First Amendment implications of

this case.

If this Court decides the case on theTharrow ground

suggested by the petitioners, amici urge this Court to limit

its opinion carefully by reserving the question of intrusive

civil discovery of the internal records of a religious body,

and by refraining from dicta that would serve in any way

to diminish the associational privacy of religious bodies

by broadening the access of hostile outsiders to their in-

ternal records. If this Court decides the case on the nar-

row ground suggested by the petitioners, amici likewise

urge this Court to reserve the question of the imposition

of excessive fines on a religious body, and to refrain from

any dicta that would serve to diminish the legitimate

autonomy of religious bodies by expanding judicial power

over these bodies where less restrictive alternatives (e.g.,

certification of the ruling on the standing of the plaintiffs

for an interlocutory appeal) would serve any interest which

may be asserted on behalf of orderly administration of

justice and would obviate inquiry into whether the interest

in behalf of the contempt order in this case was truly ‘‘com-

pelling.’

Counsel for petitioners and respondents have granted

consent to the filing of this brief. The particular state-

ment of interest of each amicus participating in this brief

is contained in the appendix.

SUMMARY OF ARGUMENT

Amici are interested in the correct resolution of four

mistakes in this case affecting religious freedom. The

first two mistakes relate to the legal standing of the pe-

titioners and the private respondents. The other two

mistakes concern the threat to the autonomy and integrity

of all religious bodies posed by the court order of dis-

covery of sensitive internal records of a major religious

denomination and by the imposition of coercive fines on

that church in unprecedented severity. None of these

constitutional errors is ‘‘harmless.’’

The first standing mistake was the ruling of the dis-

trict court that the private respondents (plaintiffs below)

have standing, either as voters or as members of the

clergy, to challenge the tax-exempt status of a major re-

ligious organization. This mistake enlarges the power

of the judiciary and diminishes the role of the executive

over the administration of federal tax policy in a manner

directly contrary both to the requirements of the constitu-

tion and to the clear intent of Congress. (Part I)

The second standing mistake was the ruling of the

court of appeals that the petitioners lack standing as

witnesses to challenge the subject matter jurisdiction of

the federal court to enter a compulsory discovery order

against a religious body, and to hold the church in civil

contempt for its refusal to comply with the discovery or-

der. This mistake bootstraps the governmental interest

in efficient administration of criminal justice into an un-

differentiated and unreviewable power over religious bod-

ies in a civil suit, on a record where it is plain that the

church had no legal mechanism available to it other than

civil contempt in order to seek appellate review of the first

standing mistake. (Part 11)

Religious freedom was also jeopardized by the ruling

of the district court requiring the petitioners to hand over

to the plaintiffs massive amounts of sensitive internal

church records. Yhese records include confidential tax re-

turns which the private respondents may not obtain from

the federal respondents because Congress has expressly

prohibited ihe executive from disclosing such information

to anyone, let alone to the political adversaries of a not-

for-profit religious organization. Religious freedom was

also threatened by the raw judiciai: power of the district

court in holding a major religious body in civil contempt

and in imposing fines in the amount of 5100,000 per day

on the church petitioners for each day in which they refuse

to comply with the court’s compulsory discovery order.

(Part I11)

co)

ARGUMENT

_ I. THE SENSITIVE TASK OF REVOCATION OF

THE TAX-EXEMPT STATUS OF A NOT-

FOR-PROFIT RELIGIOUS ORGANIZATION

SHOULD NOT BE ENTRUSTED TO PRIVATE

THIRD PARTIES WHO MAY ACT MERELY

BECAUSE THEY DO NOT AGREE WITH

THF RELIGIOUS MESSAGE OF THE EX-

EMPT ORGANIZATION.

Although this case is fraught with First Amendment

difficulties of the highest magnitude, the standing issues

are the principal matters now before this Court, and it is

understandable that this Court may seek a narrow ground

for disposing of this case. In the view of the amici, how-

ever, the correct disposition of these standing issues re-

quires at least an awareness of the pernicious consequences

to religious freedom and to the associational rights of re-

ligious communities which flow from the rulings of the

courts below. The underlying reason for the petitioners’

reluctant decision to allow itself to be held in contempt of

court is its conviction, based on the advice of its legal coun-

sel, that the district court lacks jurisdiction over the sub-

ject matter, and therefore is without power to enforce the

subpoenas duces tecum of the plaintiffs, private third par-

ties who attack the tax-exempt status of the church. In

the petition for certiorari and brief in opposition, the

parties discuss this case as though it presented an un-

adorned matter of standing. Amici urge that this Court

view these standing matters through First Amendment

lenses, in order to see the full seriousness of allowing the

federal courts to be used by opponents of religious bodies

to strip them of their exempt status.

6

The first standing mistake was the ruling of the dis-

trict court that the private respondents (plaintiffs below)

have standing, either as voters, Abortion Rights Mobiliza-

tion, Inc. v. Regau, 544 F. Supp. 471, 480-482 (S.D.N.Y.

1982), A. 69a-74a, or as members of the clergy, id. at 475-

479, A. 67a-69a, to challenge the tax-exempt status of a

major religious denomination, on the view that the federal

respondents had allegedly ‘‘denigrated’’ the plaintiffs’ re-

ligious beliefs and ‘‘frustrated’’ their ministry by giving

“tacit government endorsement of the Roman Catholic

Church view of abortion.”’

The second standing mistake was the ruling of the

court of appeals that the petitioners lack standing as wit-

nesses to seek appellate review of the jurisdiction of the

federal court to enter a compulsory discovery order mas-

sive in scope against a religious body, and to hold the

church in civil contempt for its refusal to comply with the

discovery order. (See TI, infra). Both of these standing

errors represent significant departures from the binding

precedents of this Court,’ and are addressed fully in the

briefs of the petitioners and the federal respondents.* Al-

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

Christian Coilege v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464 (1982); Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. 26 (1976); United States v. Rich-

ardson, 418 U.S. 166 (1972); and Schlesinger v. Reservists Com-

mittee to Stop the War, 418 U.S. 208 (1972).

3 In this case the federal respondents agree with the peti-

tioners that the district court lacks subject matter jurisdiction.

Indeed, the government has sought review of this very issue in

the court of appeals and this Court on repeated occasions. See,

e.g., Briefs of the United States in Nos. 86-157 and 86-162.

7

though it is extremely unlikely that the petitioners in this

particular case will modify their teaching on abortion, no

matter what the outeome of the lawsuit, amici urge that

the very threat of such litigation may impact severely on

the ability of not-for-profit religious organizations to com-

municate their varying messages on matters of public

concern.’ For these reasons amici urge this Court to re-

verse the decisions below on the standing issues.

A. The District Court erred in Conferring Stand-

ing on the Private Respondents (Plaintiffs

below) to Challenge the Exempt Status of a

Major Religious Organization on the Grounds

that the Plaintiffs are either Voters or Mem-

bers of the Clergy.

This Court has clarified repeatedly that in order to

have standing, a plaintiff must demonstrate actual or

threatened injury that can fairly be ‘‘traced to the chal-

lenged action’’ and ‘‘is likely to be redressed by a favor-

able decision,’’ Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26, 38, 41 (1976). Like this case, Simon in-

volved a challenge to the tax-exempt status of third party

organizations. In Simon this Court refused to find a

causal link between a revenue ruling under LR.C. § 501(c)

(3) and a reduction in services to indigents. The Simon

. As is evident from the statement of interests of the amici,

some of the amici agree with the position of the petitioners on

the abortion issue and others do not. Nonetheless, all of the

amici are of one mind that in the American constitutional order

a religious body must be free to address matters of public policy

without being subjected on that account to harassing litigation

by outsiders. For example, the American Jewish Congress and

the Presbyterian Church should not be exposed to costly litiga-

tion by right to life advocates who might, under the theory ad-

vanced by the plaintiffs in the instant case, attack the exempt

status of these organizations for allegedly excessive involvement

in the political order on the opposite side of the abortion issue.

8

Court ruled that ‘‘[{i]t is purely speculative whether the

denials of service specified in the complaint fairly could

be traced to petitioners’ encouragement or instead result

from decisions made by the hospitals without regard to

the tax implications,’’ Id. at 42-43. In Allen v. Wright,

468 U.S. 737 (1984), this Court held that even if a plain-

tiff has sustained an injury, standing is still deficient

where ‘‘the injury alleged is not fairly traceable to the

Government’s conduct ... challenge{d} as unlawful.’’ Id.

at 757. The Allen Court reasoned that it was ‘‘entirely

speculative whether withdrawal of the tax exemption of

racially discriminatory schools would have any impact on

the ability of respondents’ children to receive a desegre-

gated education.”’ Id. at 758.

(i) Voter Standing

Ignoring the dictates of Simon and Allen, the district

court conferred standing on the plaintiffs in their capacity

as voters, on the view that they have somehow been dis-

advantaged by the federal respondents’ alleged ‘‘prefer-

ential treatment’’ of the church. The fallacious premise

for this view is that taxed contributions translate into less

voting power than non-taxed contributions. This analysis

is flawed for two reasons. First, the plaintiffs have not

experienced a cognizable injury in their capacity as vot-

ers. The actual voting power of each individual plaintiff

at the polling place is not in the least restricted by cam-

paign activities, whether conducted by taxed or tax-exempt

organizations. The plaintiffs’ votes are no less signifi-

cant than those of other voters. Baker v. Carr, 369 U.S.

186, 208 (1962).

Second, even if it were assumed that the plaintiffs in

this case had suffered some palpable injury to their rights

9

of franchise, the injury was not caused by the actions of

the government, as it was in Baker v. Carr, supra. The

injury claimed is the purported ‘‘added influence’’ that

the Catholic church has because of deductible contribu.

tions which it may spend on campaigns opposing abor-

tion. This claimed injury is actually traceable neither to

the federal respondents nor even to the petitioners, but to

third party taxpayers who choose voluntarily to make

charitable contributions to the petitioners. It is purely

conjectural to believe that taxing these charitable gifts

will in any significant way diminish voluntary giving to

that church.* It is still more speculative to imagine that

taxing these gifts would in any significant way decrease

that church’s efforts to influence abortion policy in this

country, for the church’s campaign against abortion is

grounded in sincerely held religious beliefs. Because the

claimed injury to voting rights is not cognizable injury

which is traceable to governmental action or redressable

by a court order, it is insufficient to confer standing on the

private respondents in their capacity as voters to challenge

the exempt status of the petitioners.

The remedy sought by the plaintiffs as voters, more-

over, does not advance the First Amendment goal of af-

fording more voices to be heard in our democracy. To the

contrary, it seeks to penalize those who espouse a view-

point on a public controversy different from that of the

plaintiffs, and thus would have the effect of diminishing

the flow of information to voters and to elected represen-

. The hypothetical character of the plaintiffs’ claim is under-

scored by the fact that the majority of taxpayers (60.8°/o in tax

vear 1985) do not itemize charitable contributions, but prefer

to take the standard deduction. /RS Statistics of Income Divi-

sion Bulletin 1 (Winter 1986-87). With the increase of the stand-

ard deduction in the Tax Reform Act of 1986, tax analysts ex-

pect a further decrease i.1 the number of taxpayers who itemize.

10

tatives. Allowing voters to resort to the courts to revoke

the exempt status of a religious body because of its dis-

semination of views on matters of public concern has the

inevitable effect of chilling the expression of moral views

which have ramifications in public policy choices. Al-

though a sound argument may be advanced for allowing

voters greater access to the judiciary in order to en-

sure fuller participation in the political process by all, see,

e.g., J. Ely, Democracy and Distrust 105-125 (1980), it

makes no sense to expand the power of the nonpolitical

branch to issue rulings that have the effect of chilling or

diminishing the pluralistic character of debate on matters

of public coneern. For this reason as well, this Court

should reverse the conclusion that plaintiffs have standing

as voters to challenge the exempt status of the petitioners.

(ii) Clergy Standing

The district court likewise erred in conferring stand-

ing on the clergy plaintiffs on the view that the protected

activity of the petitioners violates the rights of these

clergy plaintiffs secured under the Establishment Clause.

This conclusion is erroneous for three reasons. First, the

mere fact that a plaintiff seeks relief under the Establish-

ment Clause does not mean that the normal requirements

for standing are diminished. See, e.g., Valley Forge

Christian College v. Americans United for Separation of

Church and State, 454 U.S. 464 (1982). Important as the

prohibition against governmental establishment of reli-

gion is in our society, it nonetheless remains true that not

‘*all constitutional provisions are enforceable by any citi-

zen simply because citizens are the ultimate beneficiaries

of those provisions.’’ Schlesinger v. Reservists Commit-

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

Second, a plaintiff must show direct and palpable in-

jury caused by the illegal conduct of the defendant, not

11

mere psychological distress that one’s view of the consti-

tutional order has been offended. In Valley Forge the

Court held that the plaintiffs lacked standing because they

‘‘failfed] to identify any personal injury suffered by them

as a consequence of the alleged constitutional error, other

than the psychological consequence presumably produced

by observation of conduct with which one disagrees.”’ /d.

at 485. Similarly in Allen, supra, this Court denied stand-

ing to black parents who claimed that they suffered ‘‘stig-

matic’’ injury because of the tax-exempt status of segre-

gated private schools, on the view that the alleged injury

was too abstract to fulfill standing requirements. 468

U.S. at 754-56.°

Mere mechanical pleadings raising claims of abstract

stigmatic injury are not enough to expose a not-for-profit

religious organization to costly litigation initiated by its

ideological adversaries. The claimed injury to the clergy

in this case is as intangible as the ‘‘psychological’’ injury

found insufficient to confer standing in Valley Forge and

the ‘‘abstract stigmatic’’ injury addressed in Allen. The

extent of the ‘‘injury’’ to these members of the clergy is

easy to assert, but difficult if not impossible to meas-

ure. Thus it is hard to imagine how the ability of

the clergy plaintiffs to minister to their flocks could be

helped in any significant way by the outcome of this liti-

. Although Allen seems plainly to require the result that the

private respondents lack standing, the district court in Abortion

Rights Mobilization, Inc. v. Regan, 603 F. Supp. 970 (S.D.N.Y.

1985), A. 93a-102a, expressly declined to modify its earlier ruling

on voter and clergy member standing in the light of Allen, or

even to certify the standing matter for purposes of an inter-

locutory appeal by the petitioners. The district court’s refusal

to certify its rulings on this matter for interlocutory appeal trig-

gered the contempt proceedings as the only legal mechanism

available to the petitioners to challenge the jurisdiction of the

court to order massive discovery of sensitive internal church

records. See Part III B, infra.

12

gation, for the plaintiffs are not seeking restoration of

tax-exempt status for themselves, but the revocation of the

exempt status of a third party.

Third, the substantive theory of the plaintiffs’ case is

based on the view that the severe restrictions on political

speech imposed by I.R.C. § 501(e)(3) on exempt organiza-

tions are required by the First Amendment. Amended

Complaint, par. 16 & 17.6 It is, however, contrary to

the clear teaching of this Court, Wale v. Tax Com-

mission, 397 U.S. 664 (1970), to suppose that the grant of

tax-exempt status to a religious body constitutes, as the

district court imagined, impermissible ‘‘government en-

dorsement of the Roman Catholic Church view of abor-

tion,’’ A. 67a, or ‘‘official approval of an orthodoxy.’’ A.

68a.7 And it is equally fanciful to suppose that the federal

s In their brief before the court of appeals, plaintiffs urged

that this result is required by the holding in Christian Echoes

National Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir.

1972), cert. denied, 414 U.S. 864 (1973). Congress, however, ex-

pressly declined to give its approval or disapproval to the ration-

ale for § 501(c)(3) in Christian Echoes, Tax Reform Act of 1976,

§ 1307(b)(3), Pub. L. 84-455, 90 Stat. 1722.

Plaintiffs also rely on this Court’s ruling in Regan v. Taxa-

tion With Representation, 461 U.S. 540 (1983), and Cammarano

v. United States, 358 U.S. 498 (1959). Neither of these two tax

cases, however, involved a religious body attempting to com-

municate its religious message on matters of public concern.

Taxation With Representation, moreover, is not directly controll-

ing because the “saving” feature of I.R.C. 501, viz., 501(c)(4),

is of no practical use to a preacher, who cannot be required to

announce at the beginning of a sermon whether he is speaking

for a 501(c)(3) church or a 501(c)(4) clone, let alone to switch

birettas or yarmulkes in the midst of such a sermon.

7 In Walz this Court sustained tax exemption for property

used exclusively for religious worship, on the view that, far from

establishing religion, this practice avoided governmental inter-

ference with aban. in addition, the Court expressly noted:

“Adherents of particular faiths and individual churches fre-

quently take strong positions on public issues including, as this

(Continued on following page)

13

respondents have impliedly ‘‘denigrated’’ the religious be-

liefs of the plaintiffs who are members of the clergy or

that the Secretary of the Treasury and the Commissioner

of the IRS have in any way ‘‘frustrated’’ the ministry of

those plaintiffs. On this record it is all too plain who is

attempting to frustrate whom. It is the plaintiffs whose

constitutional theory undermine the necessary degree of

flexibility or ‘‘room for play in the joints’? deemed ap-

propriate in Walz, 397 U.S. at 6698 Although the plain-

tiffs who are clergy members may subjectively feel that

their beliefs are ‘‘denigrated’”’ by the tax-exempt status of

the Catholie church, that is not enongh to establish stand-

ing under this Court’s teaching in either Simon or Allen.

It is, moreover, entirely speculative to conclude, as the

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

status of a religious body necessarily marks its decline in

(Continued from previous page)

case reveals in the several briefs amici, vigorous advocacy of

legal or constitutional positions. Of course, churches as secular

hodies and private citizens have that right.” Id. at 670.

. It is difficult to conceive of greater rigidity than to give to

any opponent of the teachings of a religious body access to fed-

eral court to seek an injunction to compel the revocation of that

church’s exemption from the payment of federal income tax and

a whole series of cascading events flowing from the loss of that

status. With the loss of exempt status under I.R.C. § 501(c)(3),

a religious body would not only have to pay taxes on all net in-

come, but all contributions to the church would no longer be

deductible oy the contributing taxpayer for purposes of federal

income tax, I.R.C. §170(c)(2)(D), estate tax, I.R.C. §§ 2055

(a)(2) and 2106(a)(2)(A)(ii), and gift tax, 1.R.C. § 2522(a)(2). In ad-

dition, most of the states have parallel provisions in their tax

codes which incorporate |.R.C. § 501(c)(3) by reference, for pur-

poses of determining the exemption of a religious body from pay-

ment of a wide variety of state and local taxes. Some states,

moreover, predicate their regulatory authority over an entity seek-

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

status, conferring, for example, an exemption from annual re-

porting requirements to groups which are exempt under

§ 501(c)(3).

14

influence; this belief ignores the myriad of factors that

influence the moral vitality of a religious community.

Like others who favor abortion, plaintiffs have First

Amendment protection in advocating their views. As the

diversity among religious bodies included among the amici

demonstrates, the moral teaching of various religious

bodies on abortion has not been contingent upon the teach-

ing of the Catholic church on this matter, let alone on the

even more attenuated question of whether that chureh en-

joys tax-exempt status. The implication to the contrary

in the district court’s ruling in ARM / merely emphasizes

the need for rules of standing that preclude the use of the

federal courts for attacking religious organizations.

B. The Private Respondents Lack Statutory

Standing because Congress has Entrusted to

the Federal Respondents the Sensitive Task

of Granting and Revoking the Tax-exempt

Status of Charitable Organizations.

The standing requirement limits the jurisdiction of

federal courts ‘‘to those disputes which confine federal

courts to a role consistent with a system of separated

powers and which are traditionally thought to be capable

of resolution through the judicial process,’’? Flast v. Co-

hen, 392 U.S. 83, 97 (1968), and then only if Congress has

conferred jurisdiction. Although plaintiffs have not

claimed statutory standing, the basic posture that they oe-

cupy in this case is that of a private attorney-general seek-

ing to compel enforcement of the tax law against a third

party. Far from conferring statutory standing on the

plaintiffs in this lawsuit, however, Congress has given

several indications inthe tax code that support the

opposite conclusion.? In short, Congress plainly intended

® In the Anti-Injunction Act, I.R.C. § 7421(A), Congress pro-

hibited suits to restrain assessment or collection of any tax,

(Continued on following page)

15

the administration of the code, including the granting and

revocation of exempt status under § 501(c) (3), to be within

the discretion of the federal respondents over whom Con-

gress has a great deal of control through the oversight pro-

cess, rather than within the boundless imagination of

plaintiffs seeking to enforce their notions of tax equity in

the federal courts.

The district court’s view of standing, however, under-

mines the express intent of Congress by allowing private

parties and the federal courts to usurp the role of both the

legislative and executive branches, contrary to this Court’s

teaching in Valley Forge that Article III power is ‘‘not

an unconditioned authority to determine the constitution-

ality of legislative or executive acts.’’ 454 U.S. at 471.

It is likewise clear under Valley Forge that the plaintiffs

do not have ‘‘license to roam the country in search of gov-

ernmental wrongdoing and to reveal their discoveries in

federal court.’’ 454 U.S. at 487. This Court should re-

emphasize this teaching here, lest fundamental rights of

religious autonomy be exposed to attack through lawsuits

by hostile outsiders.

(Continued from previous page)

whether brought by a taxpayer or, as here, by a third party. Con-

gress has delegated the administration and enforcement of the

tax laws exclusively to the Secretary and the Commissioner.

1.R.C. § 7801(a). In addition, Congress gave to the federal re-

spondents the power to “prescribe all needful rules and regula-

tions for the enforcement of” those laws. 1I.R.C. § 7805(a). And

Congress reserved for itself the task of overseeing the enforce-

ment of the revenue laws by creating a Joint Committee on Taxa-

tion to investigate the administration, operation, and effects of

the tax system (I.R.C. §§ 8001-8023). These provisions reflect

congressional intent to operate the tax system within the legisla-

tive and executive branches. Congress, moreover, has expressly

mandated that the IRS maintain the confidentiality of tax records,

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

religious freedom, Congress has expressly limited the power of

the IRS to conduct audits of church bodies. 1.R.C. § 7611.

16

Even when suits to compel the executive branch to un-

dertake enforcement committed to its diseretion are

‘*premised on allegations of several instances of violations

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

court adjudication.*’ Allen, 468 U.S. at 759-760. Noting

that an agency decision regarding enforcement proceed-

ings ‘thas long been regarded as the special province of

the Executive Branch, inasmuch as it is the Executive who

is charged by the Constitution to ‘take Care that the Laws

be faithfully executed.’ U.S. Const., art. II, §3,’’ Heckler

v. Chaney, 470 U.S. 821, 832 (1985), this Court has empha-

sized that executive agency decisions not to enforce are

characteristically unsuitable for judicial resolution be-

cause this discretionary choice ‘‘often involves a compli-

cated balancing of a number of factors which are peculiar-

ly within its expertise.’’ Id. at 831." One of the reasons

why Congress has entrusted delicate decisions concerning

the exempt status of religious organizations to the federal

respondents is that they take an oath of office to support

the constitutional limits on their own authority. Private

litigants with their own agenda are under no such obliga-

tion to take into account the protections of the First

Amendment. If this case is any indication, the likelihood

that disgruntled third parties will be sensitive to the free

speech and free exercise concerns of non-profit organiza-

tions they oppose is slim. To the contrary, the probability

ad Unlike the district court in this case, this Court and the

lower federal courts typically defer to determinations of the IRS

concerning discretionary applications of the provisions of the

tax code. See, e.g., National Muffler Dealers Ass’n., Inc. v. United

States, 440 U.S. 472 (1979); Tax Analysts and Advocates v. Blu-

menthal, 566 F. 2d 130 (D.C. Cir. 1977), cert. denied, 434 U.S.

1086 (1978); American Society of Travel Agents, Inc. v. Blumen-

thal, 566 F. 2nd 145 (D.C. Cir. 1977), cert. denied, 435 U.S. 947

(1978).

17

that religious organizations will become the target of third

parties hostile to their religious perspective is high."

The standing rule adopted by the district court could

easily open up the floodgates to litigation against churches

by those hostile to their mission or ideas. See, e.g., Khalaf

v. Regan, 85-1 U.S. Tax Case Par. 9269 (D.D.C. 1985)

(dismissing on standing principles effort of anti-zionist

organization to revoke exempt status of Jewish charitable

organizations because of their support of Israel); Ameri-

can Soctety of Travel Agents, Inc. v. Blumenthal, 566 F.

2d 145 (D.C. Cir. 1977), cert. denied, 485 U.S. 947 (1978)

(dismissing on standing principles attack on exempt status

of American Jewish Congress by business competitors).

The potential for mischief of this sort, moreover, is com-

pounded by the suggestion in Bob Jones University v.

United States, 461 U.S. 574 (1983), that an exempt or-

ganization may lose its exempt status by failing to con-

form with ‘‘publie policy,’’ id. at 586, or by failing to ‘‘be

in harmony with the public interest’’ id. at 592; but see at

606-612 (Powell, J., concurring; rejecting suggestion that

‘‘primary function of exempt organizations is to act on

behalf of the Government in carrying out governmentally

approved policies’’).

The district court’s approach to standing, moreover,

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

could readily affect exempt charitable organizations which

are secular in character. For example, a member of the

Ku Klux Klan who is a registered voter could sue the

ue Religious organizations may on occasion quarrel with the

IRS over issues of governmental intrusion into areas deemed pro-

tected under the Religion Clause. See, e.g., D. Kelley, ed., Gov-

ernment Intervention in Religious Affairs (1982). But at least the

known “devil” is better than unknown private adversaries whose

name is “legion.”

18

Secretary of the Treasury to revoke the exempt status of

the NAACP if the civil rights education fund were to par-

ticipate in voter edueation deemed impermissible under the

restrictive regulations in Rev. Rul. 78-248 (construing

§ 501(¢)(8) to prohibit distribution of accurate informa-

tion te voters if the voter guide focuses on a single issue

such as land conservation). Similarly, opponents and pro-

ponents of gun control could use the courts rather than

the halls of Congress and other legislative chambers to

earry on their debates. Even if their suits were ultimately

dismissed on the merits, they would have succeeded in

obtaining valuable information about their opponents that

would otherwise be unavailable to them.

As this record illustrates, significant harm to relig-

ious freedom may result from subjecting religious bod-

ies to inquiries which violate their legitimate autonomy.

(Part II], mfra). See Laycock, ‘‘Towards a General

Theory of the Religion Clauses,’’ 81 Colum.L.Rev. 1373

(1981). The cost of defending such suits, moreover, repre-

sents a sienificant diversion of funds earmarked for chari-

table works. None of the amici construe the biblical com-

mand io feed the hungry (e.g., Isaiah 58:7; Matt. 25:35) to

refer primarily to lawyers. At the very least, such diver-

sion of funds cannot be justified on the basis of protecting

litigants whose tax liability is not at issue, and will not be

affected by the outcome of the litigation. For these rea-

sons this Court should reverse the district court’s errone-

ous ruling on standing.

’

19

II. WHERE A MAJOR RELIGIOUS BODY IS

HELD IN CIVIL CONTEMPT AS A WITNESS

IN EXEMPTION-REVOCATION PROCEED-

INGS INITIATED BY OUTSIDERS HOSTILE

TO ITS MESSAGE ON A MATTER OF PUB.

LIC CONCERN, THE CHURCH HAS STAND-

ING TO SEEK APPELLATE REVIEW OF

THE UNDERLYING JURISDICTION OF THE

DISTRICT COURT TO ORDER DISCOVERY

OF SENSITIVE INTERNAL DOCUMENTS.

The second standing mistake was the ruling of the

court of appeals that the petitioners lack standing as wit-

nesses to challenge the subject matter jurisdiction of the

federal court to enter a compulsory discovery order against

a religious body, and to hold the church in civil contempt

for its refusal to comply with the discovery order. Jn re

United States Catholic Conference, 824 F. 2d 156 (2d Cir.

1987). A. la-43a." In reaching this result, the court of

appeals virtually ignored the recent teaching of this Court

in Bender v. Williamsport Area School Dist., 475 US.

534, 106 S.Ct. 1326 (1986), that ‘‘every federal appellate

court has a special obligation to ‘satisfy itself not only

of its own jurisdiction, but also that of the lower courts

in a case under review... .’’’ 106 S.Ct. at 1331 (e1m-

phasis added). Failing to distinguish an appeal from a

contempt citation and a dilatory interlocutory appeal, the

court of appeals asserted that the Bender rule is inappli-

cable to interlocutory appeals. The court of appeals de-

vised a new rule of standing, according to which the peti-

tioners’ challenge to the power of the district court to or-

& On this record it is plain that subjecting itself to a civil

contempt citation was the only available legal mechanism to

seek appellate review of the first standing mistake ‘‘before un-

dertaking any burden of compliance with the subpoena.” United

States v. Ryan, 402 U.S. 530, 533 (1971). See note 5 supra.

20

der massive discovery of the sensitive internal documents

of a major religious body must fail if the appellate tri-

bunal finds a modicum of ‘‘eolorable’’ jurisdiction in the

lower court.

The court of appeals justified this conclusion by ex-

tensive reliance on Blair v. United States, 250 U.S. 2738

(1919), a case which did not involve a religious body, but

a challenge to the authority of the grand jury by a crucial

witness in a criminal investigation. Whatever the need

for the Blair rule in the special context of grand jury

investigations, it makes little sense to extend the rule into

an undifferentiated and unreviewable power of private

plaintiffs over religious bodies in a civil suit, especially

where the government does not assert the interest at issue

in Blair. Even if this case were a criminal prosecution

of a bogus ‘‘church,’’ the normal rule for the judiciary

would be to defer to the discretion of the executive in

conducting the prosecution. See, e.g., United States v.

Cox, 342 F. 2d 167 (5th Cir. 1965) (en bane), cert. denied,

381 U.S. 935. But this is not a case in which the govern-

ment is aligned against a religious body because of an

alleged violation of the tax code. See, e.g., Bob Jones

University v. United States, 461 U.S. 574 (1983). It is

a case in which private parties seek to use the federal

courts to inflict a penalty on a major religious body for

the evident reason that they disagree with the moral teach-

ing of that church on a controversial matter of public

concern. Under these circumstances and in the light of

Heckler v. Chaney, supra, this ease is hardly an apt ve-

hicle for extending the reach of the Blair rule to religious

bodies which choose to speak out on matters of conscience

that are controversial in nature.

21

III. RELIGIOUS FREEDOM IS THREATENED

WHEN FEDERAL COURTS DENY ANY

MEANINGFUL REVIEW OF SUBSTANTIAL

FINES IMPOSED ON A CHURCH FOR RE-

FUSING TO DISCLOSE SENSITIVE INTER.

NAL DOCUMENTS RELATING TO PASTOR-

AL PLANS FOR CONSTITUTIONALLY PRO-

TECTED MORAL ADVOCACY ON MATTERS

OF PUBLIC CONCERN.

A. Communicating sincerely held religious con-

victions on matters of public concern is pro-

tected activity.

In the view of the private respondents, the severe

restrictions on political speech imposed by I.R.C. § 501(e)

(3) on exempt organizations are required by the First

Amendment. Amended Complaint, par. 16 & 17. The

underlying theory of the plaintiffs’ case is that they must

vindicate rights secured under the Establishment Clause

because the federal respondents have failed to do so. In

addition to the standing difficulties noted above, the ma-

jor flaw with this theory is that this Court has clearly

announced that, for Establishment Clause purposes, an

exemption of religious bodies from the payment of taxes

does not violate the First Amendment. Walz v. Tax Com-

mission, 397 U.S. 664 (1970).° In disposing of this case,

this Court need not and, indeed, should not address the

plaintiffs’ contention that § 501(¢)(3) is constitutionally

mandated. If, however, this Court deems it prudent to

discuss the constitutionality of § 501(¢) (3) in dictum, amici

urge that no truly compelling governmental interest sup-

ports these statutory restraints. To the contrary, in order

to safeguard the functioning of our democracy, the con-

3 Contrary to the suggestion of the private respondents,

this ruling was not disturbed in Taxation with Representation,

supra.

22

stitution should foster greater freedom of political speech

rather than its inhibition or suppression.”

It is well settled that any statute that significantly

burdens free speech rights may be sustained only on a

showing by the government that the statute serves a truly

‘‘compelling state interest’’ and that the means chosen

by the government to achieve this end is the alternative

which is the least restrictive of cherished free speech

rights. See e.g., Hobbie v. Unemployment Appeals Com-

mission, 480 U.S. —. 107 S.Ct. 1046, 1049 (1987). It is also

well settled that religious bodies are afforded additional

constitutional protection precisely because of their re-

ligious character. The protection of the Free Exercise

Clause may be invoked only by persons or zroups whose

sincerely held religious tenets are burdened by governmen-

tal action. See, e.g, Sherbert v. Verner, 374 U.S. 398

(1963), and Thomas v. Review. Board, 450 U.S. 707, 717-

718 (1981). In the leading decision directly relating this

teaching to tax benefits, Speiser v. Randall, 357 U.S. 513

(1958), this Court stated:

It is settled that speech can be effectively limited by

exercise of the taxing power. ... To deny an exemp-

tion to claimants who engage in certain forms of speech

is in effect to penalize them for such speech. Its

deterrent effect is the same as if the State were to

fine them for this speech. /d. at 518.

Thus, far from being constitutionally compelled by the

First Amendment, the restrictions on the political speech

we In another case before this Court during this Term amici

have expressed their views that the Religion and Free Speech

Clauses afford substantial protection against extensive govern-

mental regulation of a religious body that chooses to an-

nounce sincerely held religious beliefs directly relating to

matters of public concern. See Amicus Brief of Baptist Joint

Committee on Public Affairs et al., in Bemis Pentecostal Church

v. State, app. pending, No. 87-317.

23

of religious organizations in §501(c)(3) are themselves

vulnerable to constitutional attack because they are by no

means the alternative least restrictive of their rights se-

cured under the Religion Clause and the Free Speech

Clause. Indeed, it is difficult to imagine a restriction

more total than the absolute prohibition on any participa-

tion by a 501(c)(3) organization in a political campaign,

whether on behalf of or in opposition to a candidate for

public office. See e.g., IRS Exempt Organizations Hand-

book (IRM 7751) §3(10)1; and see Treas. Reg. § 1.501(c)

(3)-1(¢)(3) (iii). It is likewise hard to imagine that IRS

rulings virtually prohibiting voter education efforts by

exempt organizations on topics of concern to the organiza-

tion, see, e.g., Rev. Rul. 78-160, 1978-1 C.B. 153, revised

by Rev. Rul. 78-248, 1978-1 C.B. 1545, and Rev. Rul. 80-

282, 1980-2 C.B. 178, would pass muster in judicial review

that took seriously the mandate of New York Times v.

Sulltvan, 376 U.S. 254 (1964), that debate on issues of

publie concern must be ‘‘uninhibited, robust, and wide-

open.’’ Id. at 270. See also McDaniel v. Paty, 435 U.S.

618, 640 (1978) (Brennan, J. concurring); First National

Bank of Boston v. Bellotti, 485 U.S. 765, 776-778 (1978) ;

and Widmar v. Vincent, 454 U.S. 263 (1981); Caron and

Dessingue, ‘‘1.R.C. § 501(c)(3): Practical and Constitu-

tional Implications of ‘Political’ Activity Restrictions,’’

2 J. of L. and Polities 169 (1985) and literature cited id.

at 180, n. 40, at 181, n. 41, and at 183 n. 54.

Not all of the amici have taken a position on the con-

stitutionality of the restraints on religious organizations

imposed in §501(¢c)(3). All of the amici, however, have

from time to time engaged in public communication of sin-

cerely held religious convictions on matters of public con-

cern. For example, amici and the representatives of a

24

host of other denominations and religious bodies are called

upon regularly to express the views of religious groups

on a wide variety of social and political issues with press-

ing ethical components. In testimony before the House

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

of the United Methodist Church entered into the record of

these hearings a policy declaration of his church which

bespeaks the impossibility of any total severance of re-

ligion and polities in our society:

‘*We believe that churches have the right and the duty

to speak and act corporately on those matters of public

policy which involve basic moral or ethical issues and

questions. Any concept of church-government rela-

tions which denies churches this role in the body politic

strikes at the very core of the religious liberty. The

attempt to influence the formation and execution of

publie policy at all levels of government is often the

most effective means available to churches to keep

before modern man the ideal of a society in which

power [is] made to serve the ends of justice and free-

dom for all people.’? Legislative Activity by Certain

Types of Exempt Organizations, Hearings Before the

House Ways and Means Committee, 92d Cong., 2d

Sess. at 303, 305 (1972).

In a similar vein a representative of the National Jewish

Community Relations Advisory Council (NJCRAC) gen-

erally supported participation of religious organizations

in legislative matters:

Each of the affiliates of the NJCRAC regards its pro-

gram as an expression of the tenets of the Jewish

faith which it is organized to advance. Their activi-

ties are inspired by the Prophets’ mandate to pursue

justice. They believe that mandate governs man’s

life in all its aspects and requires those who adhere

to the principles of Judaism to let their views be heard

in support of justice for all. ... The members of these

organizations have banded together because they are

Jews and believe that they have a responsibility to

25

express a Jewish point of view. ... Thus, their activ-

ity is a form of religious expression. Id. at 99."

If this Court addresses the issue of the constitution-

ality of 4 501(c)(3) at all, it should at the very least ac-

knowledge that the permissibility of the restraints on free

speech found in this statute of recent vintage is an open

question, as applied to a protected religious organization

engaging in dissemination of its religious message.

B. The massive scope of requested discovery

threatens the autonomy of religious organiza-

tions.

The means selected by the plaintiffs to achieve their

goal in this case includes sweeping discovery re-

quests that threaten the integrity and autonomy of re-

ligious bodies. The standing issue is intimately connected

with the threat to religious autonomy posed by the discov-

ery requests, for a court without jurisdiction over the sub-

ject matter clearly lacks authority to enforce subpoenas

for production of documents, whether the subpoenas are

narrow or broad. Amici are particularly troubled that this

case might turn into an inadvertent precedent damaging

the autonomy of religious bodies. Hence amici urge this

Court to focus particular attention on the intrusive char-

acter of the excessively broad discovery requests in this

case, and on the potential chilling effect that granting

such requests entails for similarly situated religious bodies.

ss See also Statement of the Baptist Joint Committee on

Public Affairs, id. at 282; Statement of the United States Cath-

olic Conference, id. at 307-312. See also Statement of the

Baptist Joint Committee on Public Affairs, in Influencing Leg-

islation by Public Charities, Hearing Before the House Ways and

Means Committee, 94th Cong., 2d Sess. (1976); Statement of the

Lutheran Council in the U.S.A., id. at 75-76; Statement on Behalf

of the National Council of Churches of Christ in the U.S.A., id.

at 81-82; and Statement of the United States Catholic Confer-

ence, id. at 90.

26

Even if the district court had jurisdiction over the sub-

ject matter because at least some of the plaintiffs have

standing to sue the defendants, the district court nonethe-

less erred in ordering massive compulsory production of

internal church documents to a private third party and

extensive depositions of church officials and employees.'®

In the view of amici, the plaintiffs’ discovery requests

are seriously intrusive upon the autonomy and integrity

of religious bodies. In the process of attempting to prove

their case on the merits, attorneys for the plaintiffs have

proceeded against the petitioners with discovery requests

that seek to examine in depth and in great detail virtually

all significant relationships between Roman Catholic in-

stitutions at all levels and the entire political process. The

subpoenas duces tecum addressed to the petitioners de-

mand production of voluminous materials, including in-

ternal church discussions regarding the formulation and

implementation of the Catholic Bishops’ position on one

of the most vexing and fundamental religious and political

issues of our time, abortion.

If this Court sustains these subpoenas, the impact of

this decision on the amici and similarly situated religious

bodies could be staggering. There would be no _prin-

cipled way to differentiate between the plaintiffs in this

case and opponents of another religious body suing the

government to secure a judicial order revoking the tax-

exempt status of that body the cause of its political in-

volvement on any number of the other issues designated by

the Catholic Bishops as ‘‘pro-life’’ matters (e.g., nuclear

war, capital punishment, adequate health care, foreign

66 The subpoenas are described in the Petition for Certiorari,

at 6-7, and more extensively in the Appellants’ Brief before the

court of appeals, at 9-12.

27

policy and immigration policies relating to Latin America

or South Africa). Once such a plaintiff hostile to a

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

commenced an action like this case, the door would be wide

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

tion dedicated exclusively to religious purposes. Congress

surely never contemplated nor intended the result of costly

litigation against religious bodies initiatc* by private third

parties hostile to their moral teachings.

This Court, however, need not support the district

court’s order for such broad discovery against a non-

party, for the plaintiffs’ discovery rights are predicated

upon the ground that its claims are not without merit.

See, e.g., Blue Chip Stamps v. Manor Drug Stores, 421

U.S. 723 (1975). Federal courts have denied discovery

altogether where no proof of facts in support of a claim

would entitle the party seeking discovery to relief. See,

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

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

of action: (a) on the view that as registered voters they

have suffered a diminution of the strength of their fran-

chise because of alleged governmental ‘‘subsidy’’ of the

petitioners, and (b) on the view that as members of the

clergy their religious convictions have been ‘‘denigrated’’

by an official poliey of preferential treatment of the peti-

tioners over other religious bodies who disagree with the

petitioners on the issue of abortion. As was argued

above, neither of these claimed bases for standing is sig-

nificantly different from the bases unsuccessfully asserted

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

For these reasons, the legal predicate underlying the

plaintiffs’ discovery requests is seriously flawed, and their

subpoenas should not be enforced.

28

C. The penalties imposed on the petitioners are

excessive because certification is an equally

effective alternative less vestrictive of relig-

ious autonomy.

It is well settled that religious bodies are afforded ad-

ditional constitutional protection precisely because of their

religious character. See, e.g., Wisconsin v. Yoder, 406

U.S. 205 (1972). The freedom of religious bodies to ad-

dress many vexing social problems from a religious per-

spective should not be conditioned upon their compliance

with overbroad and intrusive discovery orders. Nor

should religious bodies be subjected to excessive sanctions

for seeking appellate review of the underlving power of

the court to issue such orders, unless the government can

demonstrate that it has utilized the least restrictive means

of achieving a truly compelling governmenta! interest.

Hobbie v. Unemployment Appeals Commission, 480 U.S.

—, 107 S.Ct. 1046, 1049 (1987): Thomas v. Review Board,

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

(1963). The requirement of a less restrictive alternative

announced in Sherbert is all the more appropriate in this

case, involving the contempt power, which should be en-

forced by the smallest sanction needed to be effective, or

‘‘the least possible power adequate to the end proposed.’’

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).

In this case, the district court plainly had an effective

and less burdensome alternative readily available. All of

the painful confrontation between the judiciary and a

major religious body over the past two years could

have been avoided by certifying the ruling on standing for

purposes of interlocutory appeal under 28 U.S.C.

§ 1292(b). Where the delicate issue of religious freedom

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

certify his standing ruling, even after the plain teaching

29

of this Court in Allen, constitutes an abuse of discretion so

significant that this Court should reverse the district court

on this matter.

The permissibility of the contempt citation imposed

upon the petitioners under the facts in this ease and under

free exercise standards is adequately preserved on this

record, but this Court may likewise avoid a decision on

this issue by focusing on the standing questions. In the

event that this Court elects this path, amici urge this

Court to make plain that the imposition of coercive fines

of the magnitude in this case is a reserved question, and to

refrain from any dicta that would serve to diminish the

legitimate autonomy of religious bodies by expanding ju-

dicial power over these bodies where less restrictive alter-

natives (e.g., certification of the ruling on the standing

of the plaintiffs for an interlocutory appeal) would serve

any interest which may be asserted on behalf of orderly

adininistration of justice and would obviate inquiry into

whether the interest protected by the contempt order in

this case was truly ‘‘compelling.’’

ray

My

30

CONCLUSION

For the reasons set forth in this brief, amici curiae

urge this court to reverse the judgment of the court of

appeals denying standing to the church witness to seek

appellate review of a contempt citation, accompanied by

coercive fines, that were imposed because of the church’s

refusal to comply with intrusive discovery requests for

sensitive internal records. Amici likewise urge this court

to correct the error of the district court in ARM I that any

of the plaintiffs have standing.

Respectfully submitted,

Epwarp McGiynn Garrney, JR.

Associate Professor of Law

Loyola Law School

1441 West Olympic Blvd.

Los Angeles, CA 90015

(213) 736-1157

(Counsel of Record)

Or CouNSEL:

Dove as Laycock

Professor of Law

727 East 26th Street

Austin, TX 78705

(512) 471-3275

Attorneys for Amici Curiae

App. 1

APPENDIX

STATEMENT OF INTERESTS OF

INDIVIDUAL AMICI

The National Council of Churches of Christ in the

U.S.A. [NCC] is a community of thirty-one religious com-

munions numbering over 40 million members. Some of

these communions would agree with the views expressed

by the petitioners concerning the m,-ality of abortion;

some of them would disagree. All of them have agreed,

however—through their representatives on the Govern-

ing Board of the NCC—in support of religious bodies and

all citizen groups to speak and to act on questions of

public policy without suffering state-imposed penalties or

disabilities. The Governing Board of the NCC has spe-

cifically recommended that its member communions not

unpair the relationships of confidence and trust within

the religious community by disclosing to outsiders ‘‘the

names of contributors, members, constituents ... [or]

personnel files, correspondence or other confidential and/

or internal documents or information.’’ The NCC joins

this brief in support of the right of a religious body to

be free of governmental constraint to disclose such in-

formation to hostile outsiders.

The American Jewish Congress is a national organiz-

ation of American Jews founded in 1918 to protect the

civil, political, and religious rights of American Jews.

It is exempt from taxation pursuant to L.R.C. § 501(¢) (3).

Although it was an early supporter, of freedom of choice

in abortion, and hence an opponent of the Roman Catho-

lie position on abortion, it believes that the private re-

spondents lack standing to challenge the church’s tax-

exempt status. To hold otherwise would expose tax-

App. 2

exempt organizations to a campaign of intimidation by

litigation.

James kk. Andrews is the Stated Clerk of the General

Assembly of the Presbyterian Church (U.S.A.), a national,

Christian denomination with churches in all fifty states.

[t has approximately 3.1 million active members and ap-

proximately 11,700 congregations organized into 189 pres-

bvteries and 20 synods. The General Assembly is the

highest governing body of the church, meets annually,

is composed of approximately 670 delegates known as

conuuissioners, Who are elected by the presbyteries. One-

half of the commissioners are ordained clergy and the

other half are ordained lay officers known as elders. This

brief does not purport to reflect the views of all members

of the chureh, but is based on policies decided by the

General Assembly, or incorporated into the Constitution

o! the Presbyterian Church (U.S.A.) by vote of the pres-

byteries. The policies established by the General Assem-

bly of the Presbyterion Church (U.S.A.) are not in agree-

ment with the views of the petitioners with regard to

matters of abortion rights and pro-life issues, but are

in substantial agreement with the views on constitutional

rights and religious liberty expressed in this brief.

The Baptist Joint Committee on Publie Affairs

[BJCPA] consists of representatives elected by each of

eight cooperating Baptist conventions in the United

States: American Baptist Churches in the U.S.A.; Bap-

tist General Conference; National Baptist Convention of

America; National Baptist Convention, U.S.A., Ine.; North

American Baptist Conference; Progressive National Bap-

tist Convention, Inc.; Seventh Day Baptist General Con-

App. 3

ference; and Southern Baptist Convention. These Bap-

tist groups have nearly 30 million members and reflect

the traditional Baptist concern for proper church-state re-

lations. The BJCPA has as one of its mandates the ob-

ligation to respond ‘‘whenever Baptist principles are in-

volved in, or are jeopardized through, governmental ac-

99

tion.’’ Among Baptists, the freedom of the church from

entangling relationships with the government is a /unda-

mental and sacred principle.

The Catholic League for Religious and Civil Rights

|League] is a civil rights and anti-defamation organiza-

tion, national in membership, dedicated to the defense of

religious liberty and freedom of expression. Although

the League does not purport to speak directly as the of-

ficial voice of a religious body, this case raises substantial

questions relating to central concerns of the League’s

members. When-antagonists of a particular church in-

voke the power of the government to conduct far-reaching

and intrusive examination of sensitive internal church

documents, religious liberty suffers. When political op-

ponents seek to penalize protected expressive activity cru-

cial to effective church teaching on matters of public con-

cern by maintaining costly and burdensome lawsuits, gen-

uine freedom of expression is chilled and cannot flourish.

The Church of Jesus Christ of Latter-Day Saints

[|1.DS Church] has an international membership in excess

of 6 million members with general headquarters in Salt

Lake City, Utah. There are in excess of 8,400 congrega-

tions in the United States. This brief does not purport

to reflect the views of all members, but is based upon a

policy decision made by the hierarchical general leader-

App. 4

ship of the Church, viz., The First Presidency and The

Quorum of the Twelve Apostles. Members of these lead-

ership organizations are regularly sustained in their posi-

tions by the general Church membership. ‘The preserva-

tion of religious freedom is a fundamental tenet of the

LDS Church. The LDS Church is particularly concerned

with the threat to religious freedom posed by the massive

discovery of sensitive church records ordered by the dis-

trict court in this case.

The Lutheran Church-Missouri Synod is the second

largest Lutheran denomination in North America and

the eighth largest Protestant body in the United States.

It has approximately sixty-two thousand member congre-

gations which, in turn, have approximately 2.6 million

individual members.

The National Association of Evangelicals, located in

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

ical Christian organizations, including fifty thousand

churches from seventy-eight denominations. It serves a

constituency of 10 to 15 million people through its com-

missions and affiliates.

The Synagogue Council of America [SCA] is a coordi-

nating body consisting of the organizations representing

the three divisions of Jewish religious life: Orthodox,

Conservative, and Reformed. It is composed of: Central

Conference of American Rabbis, representing the Re-

formed Rabbinate; Rabbinical Assembly, representing the

“onservative Rabbinate: Rabbinical Council of America,

representing the Orthodox Rabbinate; Union of American

Hebrew Congregations, representing the Reformed Con-

gregations; Union of Orthodox Jewish Congregations of

App. 5

America, representing the Orthodox Congregations; and

United Synagogue of America, representing the Conserv-

ative Congregations. SCA takes no position on the

merits of the underlying issue of abortion. It joins the

brief solely to reverse the error of the lower courts on the

questions of the standing of the petitioners and of the ex-

cessiveness of the penalty.

The present era of the Worldwide Church of God

[WCG] was founded by the late Herbert W. Armstrong

in 1933. Its doctrines and practices are based on a literal

understanding of the Bible. WCG has approximately 330,-

000 members, co-workers, donors, and other adult affiliates.

It has approximately 780 local congregations in 40 nations

around the world, pastored by at least 1,400 ordained min-

isters. WCG is wary of detractors being vested with the

power of the State to attack a church because dissident

former members induced a court to appoint a receiver who

took control of the administrative affairs of the WCG

and all of its assets. At the time of hearing no evidence

was introduced to support the inflammatory accusations in

the complaint. Because WCG was the target of direct

governmental interference with its autonomy and integ-

rity, it is particularly sensitive to the threat to religious

freedom posed by giving ideological opponents of religion

free-wheeling access to the courts to pursue their agenda.