Amicus Curiae Brief — Bemis Pentecostal Church v. Tennessee

Ss

Supreme Oaurt, U.S,

FIEEB

No. 87-317 Ske 23 Ret CL

In the JOSEPH F. SPANIOL, #&

CLERK

Supreme Court 7

of the United States

OCTOBER TERM, 1987

is)

BEMIS PENTECOSTAL CHURCH, et al.,

Appellants,

vs.

STATE OF TENNESSEE, et al.,

Appellees.

ON APPEAL FROM

THE SUPREME COURT OF TENNESSEE

BRIEF AMICUS CURIAE

OF THE BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS,

THE CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL

RIGHTS, THE CHRISTIAN LEGAL SOCIETY, THE NATIONAL

ASSOCIATION OF EVANGELICALS, AND THE NATIONAL

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

SUPPORT OF PLENARY REVIEW OF THIS APPEAL

EDWARD McGLYNN GAFFNEY, JR. OLIVER S. THOMAS

Counsel of Record BAPTIST JOINT COMMITTEE

LOYOLA LAW SCHOOL ON PUBLIC AFFAIRS

1441 W. Olympic Blvd. 200 Maryland Ave., N. E.

Los Angeles, California 90015 Washington, D. C. 20002

(213) 736-1157 (202) 544-4226

Attorneys for Amici Curiae

Of Counsel: ia

MICHAEL J. WOODRUFF

SAMUEL E, ERICSSON

CENTER FOR LAW & RELIGIOUS FREEDOM

Post Office Box 1492

Merrifield, VA 22116

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

TABLE OF CONTENTS

Page

Te BIO: Whi nicse cies ncdicatinislinndinccicssncccnnssnse iii

Statement of Interest of Amici Curiae ................ 1

DPI © ists ttictanseiniivinsiccinneniianacinennaneasianusemersnresersees 3

I.

This Appeal Presents Substantial Federal

Questions Under the Religion Clause and

the Free Speech Clause of the First

Amendment Because It Involves Court-

Sanctioned Imposition of Extensive

Governmental Regulation of Religious

Bodies Attempting To Speak Publicly on

Matters of Public Concern ..............ccccseeesees 3

A. The Religion Clause Affords Protec-

tion against Extensive Regulation of a

Religious Body which Chooses to

Announce Sincerely Held Religious

Beliefs that Relate Directly to Public

I cia siciennsesncssresinsensecssseesscesese 4

(i) Free Exercise Concerns ....................0.ccsseeees 5

(ii) Establishment Concerns .................0c00eeeeeees 14

B. The Free Speech Clause Protects

Churches No Less than Other Con-

cerned Citizens or Groups When They

Engage in Political Speech on Matters

Oe Be ITD sncciinstsincescacennensnetissesiccensas 16

— ij——

II. This Court Should Grant Plenary Review

of This Appeal In Order To Give Clear

Guidance to the Legislatures of the

Several States Concerning the Limits of

State Campaign Finance Laws Purporting

to Regulate Religious Not-For-Profit

Organizations Publicly Engaged In Moral

Advocacy on Matters Of Public Concern

Presented to the Electorate For Their

Deliberation and Decision. ..............:c:cccceeeee 18

CCOMCRUIREGME .sccsnsstatesinteicaceunnnibieiamrtiats te a a 20

Appendix — Table of State Statutes

Regulating Campaign Expenditures .......... Al

ee

TABLE OF AUTHORITIES

Page

Cases

Aguilar v. Felton,

473 U.S. 373, 105 S.Ct. 3232 (1985) .......... 15

Ballard v. United States,

tT IIIT MEINE. cnsccccssncascesonnaseosconsoceeescose 12

Bemis Pentecostal Church v. State,._Tenn——

oe SS Gt) 1) 4, 11, 13

Branzburg v. Hayes,

REI IE EEUTED siccsesessscsecnccncsesesscccccscsee 14

Corp. of Presiding Bishop v. Amos,

ee Re ces WUE Bie BOEE CADOT) cccccccce. 4

Edwards v. Aguillard,

482 US. ....., 107 3.Ct. 2573 (1987) .......... 14

FEC v. Massachusetts Citizens for Life,

479 U.S. ——, 107 S.Ct. 616 (1986) ........... 11

FEC v. National Conservative PAC,

INN I III a covnncsnocccccsonetoosacscsevccoseee 11

First National Bank of Boston v. Bellotti,

LE s , , SE EE 9, 13, 14

Heffron v. ISKCON,

RIMMEL) | cccssinoncescacsdcosenbansnbetesnccsetes 4

Hobbie v. Unemployment Appeals Commission,

480 U.S. ——, 107 S.Ct. 1046 (1987) ......... 10

Kedroff v. St. Nicholas Cathedral,

SEE UIE, EE III | chissincceccncnsnasccecccsccsnsssceccoce 15

Kreshik v. St. Nicholas Cathedral,

SE MEE UI EINE ‘stdcdccnsennenscoscessesonsectessececs 14

_—

Lemon v. Kurtzman,

BD 5 | 14, 16

Lovell v. Griffin,

SE SI ison sina stghsencenctecinmidupnseioaiasine o)

Marsh v. Chambers,

EE ME MET STEED | ccceiccsncinescnsnsinannecnsinebenntinee 9

McRae v. Califano,

491 F.Supp. 630 (E.D.N.Y. 1980) .............. 17

McDaniel v. Paty,

TEE EDENTON cxssoncnscescsccssscencesses 4, 9, 16

NAACP v. Button,

BU Re IIE ccsnstsnanincincecatonscnecccescccesee 17

NLRB v. Catholic Bishop of Chicago,

OD ie I EE dtnsnnccncsencccccccnccscessce 15, 19

New York Times v. Sullivan,

BE CR I IIE Sahccncesccnsedtostectecenccnssetaces 16

Pell v. Procunier, 417 U.S. 817 (1973)

ee Sg RS ree 14

Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (1976) .............. 14

Sherbert v. Verner,

Pe SD . cncetbiinneinnnstenenicieneccsccseseees 10

Thomas v. Review Board, :

Ae IP UE MID ditctrhicapsichinenternsecccenscconcse 10

United States v. National Committee for

Impeachment, 469 F.2d 1135 (2d Cir.

DOU -wcabiencciliideladtadietidianiadihsbiiatabakainbebensaccessescesce 9

Walz v. Tax Commission,

oe! Renee aS &

Widmar v. Vincent,

OSS WE. BD CADRE) cencesccesvsiccrnsicccvesnccssccenssee 13

~ AE Nil, Tlie tiats San, eames:

Wisconsin v. Yoder,

MEY CRSA - cnseractosnsncssencossinesannnationssien 5

Wolman v. Walter,

Wy SY EIT BP etindtssncentdensencetescneccnschintnns 12

Statutes

BG FETAL, BGG cccecsccsensccesserscnssocascecanescrsnsenncensenneet 15

BE EBL. FR. cceetinnnsiitntinvetniinsinnninnercncetnervensnesnersnis 15

Tenn. Code Ann. § 2-10-101 et seq. ............ passim

Appendix — Table of State Statutes ................. Al

Miscellaneous

Influencing Legislation by Public Charities,

Hearings Before the House Ways and

Means Committee, 94th Cong., 2d Sess.

LATE seennridiasbedighnsthnnandnassiienantennstasaneincssecenseessseeese 7

Legislative Activity By Certain Types of

Exempt Organizations,

Hearings Before the House Ways and

Means Committee, 92d Cong., 2d Sess.

IRIE: Rearsocnsish endhststentinadeysetivsashbeahesslionibinibesbenneveneece 6

Eckenrode, Separation of Church and State in

WHEE CRDIG). crcccsrcccesecorscccesccsansnszccnscessorsccecese 9

M. Kammen, Colonial New York: A History

iy + iodisaninniehhatdinehielehaninsiaanatataantounebencceens 9

W. McLoughlin, New England Dissent, 1630-

1833: The Baptists and the Separation of

Church and State (1971) .....cccccccccccccrrsssscesceeee 9

L. Tribe, American Constitutional Law (1978) ... 8

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are major religious bodies in the United States,

or membership organizations concerned with the preservation

paler co beeen Deg Cpe ever be thee they

parties to participate in this appeal by the filing of this brief.

The original and a copy of the consent eae heme em eget

ies ha

bodies,

ion and i burdens the right

of religious bodies to share publicly their sincerely held

religious views on matters of concern. The statement

of

The Baptist Joint Committee on Public Affairs consists of

representatives elected by each of eight cooperating Baptist

conventions in the United States: American Baptist Churches

' The Executive Board of the Tennessee Baptist Convention

appeared as Amicus Curiae in the court below on behalf of Southern

Baptist churches in Tennessee. Because the case is now of national

The Catholic League for Religious and Civil Rights is a civil

rights and anti-defamation organization, national in member-

ship, dedicated to the defense of religious liberty and freedom

of expression. This appeal raises substantial questions relating

to both of these League concerns. When the government

invokes state power to conduct intrusive and far-reaching

examinations of internal church documents, religious liberty

suffers. When the chills legitimate expressive

activity crucial to effective church teaching on matters of

public concern, freedom of expression cannot flourish.

The Christian Legal Society is a non-profit professional

association of 3,500 Christian judges, attorneys, law

and law students founded in 1961. The Center for Law &

Religious Freedom is a division of the CLS founded in 1975 to

protect the free exercise of religion, supporting the appropriate

accommodation by the state rpc ene goad ag — aa

and the respect for religious rights required by the First

Amendment.

The National Association of Evangelicals, located in

Wheaton, Illinois, is a non-profit association of

Christian organizations, including fifty thousand churches

from seventy-cight denominations. It serves a constituency of

10 to 15 million people through its commissions and affiliates.

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

a community of thirty-one religious communions numbering

over 40 million members. Some of these communions would

agree with

regulations, including public

itemized financial information about the members of their

religious bodies. The Governing Board of the National Council

of Churches has specifically recommended that its member

communions not impair the relationships of confidence and

A ET SN A Tt SA

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.”

ARGUMENT

I,

THIS APPEAL PRESENTS SUBSTANTIAL FEDERAL

QUESTIONS UNDER THE RELIGION CLAUSE AND

THE FREE SPEECH CLAUSE OF THE FIRST

AMENDMENT BECAUSE IT INVOLVES COURT-

SANCTIONED IMPOSITION OF EXTENSIVE GOV-

ERNMENTAL REGULATION OF RELIGIOUS BOD-

ATTEMPTING TO SPEAK PUBLICLY ON

MATTERS OF PUBLIC CONCERN,

This appeal is brought from a judgment of the Tennessee

e Court holding that the Tennessee Campaign

Financial Disclosure Act of 1980 [the Act] may constitutional-

ly be applied to Appellants, thirteen churches which sponsored

paid advertisements on a local referendum issue concerning the

sale of liquor by the drink. The Act requires a political

committee [PCC] to comply with extensive and

detailed financial disclosure statements. The Act defines a

PCC as any group of two or more individuals making

expenditures exceeding $250 per year to support or oppose a

measure offered to the voters for their consideration. On the

view of the Tennessee Supreme Court, the Act may require

religious bodies wishing to express biblically based views on a

matter of public concern (1) to register with the State as a PCC

before accepting any contributions to promote, advertise; or

publicly advocate sincerely held, conscientious convictions, and

(2) to file with the State detailed financial statements,

including the names and addresses of all persons who

contribute more than $100 to the church for this purpose.

Although the Act does not contain an absolute prohibition

against participation in a political campaign by a religious

body, the application of the Act to religious bodies severely

chills the ability of these oranizations to advance their

positions on a wide variety of public policy matters.

The court below erroneously ruled that the “sole

determinative issue is whether the Act violates the free speech

clause of the First Amendment.” Bemis Pentecostal Church vy.

State, __Tenn—__, 731 S.W. 2d 897, 903 (1987); Jurisdiction-

al Statement [JS], at 10a. Amici agree with the Appellant

churches that the free speech clause is clearly implicated in this

case and leads to an opposite result from that reached below.

See pp. 16-18, infra, and see JS passim. But the application of

the Act to thirteen churches attempting to announce their

religiously based message on a matter of public concern clearly

implicates the religion clause of the First Amendment as well.

In the interest of avoiding duplicative briefing, the primary

focus of this brief is upon the religion clause.

A. The Religion Clause Affords Protection against

Extensive Regulation of a Religious Body which

Chooses to Announce Sincerely Held Religious Beliefs

that Relate Directly to Public Policy Questions.

Amici do not claim that when religious organizations choose

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

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

protection greater than that enjoyed by non-religious social or

political organizations. By the same token, however, religious

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

protection than that enjoyed by their secular counterparts. See,

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

concurring). It is likewise clear that special concerns of

religious autonomy and integrity arise when the government

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

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

Presiding Bishop v. Amos, 483 U.S. __, 107 S.Ct. 2862, 2871

ee ee ee

ideation

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

U.S. 205 (1972). Specifically the application of the Act to the

Appellant churches violates both provisions of the religion

clause by requiring these churches (1) to register as a PCC as a

condition of exercising their right to speak in opposition to a

referendum issue of moral concern, (2) to elect a special officer

of the church designated as a political treasurer, and (3) to

disclose to the public the names and addresses of all church

members who contribute more than $100 to the church’s effort

to announce its religious message on matter of public concern.

(i) Free Exercise Concerns

The record in this case is replete with undisputed testimony

that the Appellants were compelled to speak out publicly on the

liquor-by-the-drink referendum because of their sincerely held

religious convictions.2 The religious nature of the efforts of

the thirteen Appellant churches to announce their religious

message to the participants in the local referendum in Jackson

is readily apparent when viewed in the context of testimony

offered to the Congress by their national counterparts. Like

the Appellants, these representatives of a host of denomina-

tions and other religious bodies are called upon regularly to

express the views of religious groups on a wide variety of social

and political issues with pressing ethical components.

For example, in testimony before the House Ways and

Means Committee in 1972, John Baker explained the role of

the Amicus Baptist Joint Committee on Public Affairs as

follows:

Some religious entities believe that their religious

‘faith commits them to a complete withdrawal from

2 See, e.g., testimony of Rev. John Lee Taylor, Pastor of West

Jackson Baptist Church, Tr. at 55-57; testimony of Forest

Montgomery, Tr. at 134; testimony of Robert A. Destro, Tr. at 188-

189, 191-192, 195; and testimony of Dean Kelley, Tr. at 145; and see

JS at 6la-66a.

the secular world. Others are compelled by their

faith into an active participation in nearly every

aspect of that secular world. If they are to be good

stewards of their religious influence these people

sincerely believe they must be involved in the

formation of public policy. War and peace, human

welfare, civil rights, abortion, and education are all

public issues, but they have attributes which make

_____ them also religious issues.

_ Legislative Activity By Certain Types of Exempt

Organizations, Hearings Before the House Ways and Means

Committee, 92d Cong., 2d Sess. at 282 (1972).

Dr. J. Elliott Corbett entered into the record of these

~hearings a policy declaration of the General Conference of the

United Methodist Church:

We believe that churches have the right and the

duty to speak and act corporately on those matters

of public policy which involve basic moral or ethical

issues and questions. Any concept of church-

government relations which denies churches this role

in the body politic strikes at the very core of the

religious liberty. The attempt to influence the

formation and execution of public 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 freedom for all people.

Dr. Corbett commented on this policy statement as follows:

This statement makes clear that the church should

speak out on public policy questions and seek to

influence the formation of public policy as it relates

to the government. The declaration points out the

inappropriateness of denying the church its role in

relating to public policy and that such a denial would

threaten religious liberty. The question here arises as

to whether ‘the free exercise’ of religion, as provided

in the First Amendment is denied if limitations are

A ape I

placed.on church lobbying in areas affecting the

church’s purpose in society. In other words, the First

Amendment guarantee of ‘the free exercise of

religion’ should not permit the state to tell the church

when it is being religious and when it is not. The

church must be permitted to define its own goals in

society in terms of the imperatives of its religious

faith. Is the Christian church somehow not being

religious when it works on behalf of healing the sick,

or for the rights of minorities, or as peacemaker on

the international scene? No, the church itself must

define the perimeters of its outreach on public policy

questions. :

Id. at 303, 305 (emphasis added). See also Statement of United

States Catholic Conference, id. at 307-312; and Statement of

National Jewish Community Relations Advisory Council, id.

at 99.

The congressional testimony referred to above demonstrates

conclusively that for many religious bodies, political speech

such as that engaged in by the Appellant churches is a form of

religious ministry. The undisputed testimony on the record of

this case further demonstrates that the application of the Act

to the Appellant churches has imposed significant burdens on

their religious ministry. Dr. Madden, for example, testified that

3 Four years later, in similar hearings before the House Ways and

Means Committee on legislation to regulate the lobbying efforts of

exempt organizations, representatives of religious bodies were even

more emphatic than in their eariier testimony that attempts to

regulate the participation of religious bodies in matters of public

concern create special constitutional problems of abridgement of free

exercise of religion. See, e.g., Statement of James E. Woods, Jr. on

behalf of the Baptist Joint Committee on Public Affairs, in

Influencing Legislation by Public Charities, Hearings Before the

House Ways and Means Committee (1976); and see 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 Conference, id. at 90.

the characterization of a religious organization as a PCC

under the Act has had a “devastating ... chilling and

discouraging and inhibiting” effect upon churches in

Tennessee which would have spoken out on issues of public

concern, but for the restrictive provisions of the Act. JS, 63a.

No sensible interpretation of Free Exercise jurisprudence can

fail to conclude that the Act has imposed a significant, indeed a

substantial, burden on the freedom of religious organizations to

announce their message on public policy matters. The

imposition of such a burden on religious organizations merits

plenary review by this Court.

This Court, moreover, should consider the impact of the

rule announced by the lower court not simply upon the

Appellant churches in this case, but upon religious bodies

throughout the country which have since the dawn of the

republic regarded it part of their religious ministry to

announce their religious message on a wide variety of matters

of social concern. As Professor Tribe has noted, “‘churches and

religious groups in the United States have long exerted

powerful political pressures on state and national legislatures,

on subjects as diverse as slavery, war, gambling, drinking,

prostitution, marriage, and education.” L. Tribe, ‘American

Constitutional Law 867 (1978). Other matters of public

concern which have been addressed by religious groups

recently include nuclear war, capital punishment, adequate

health care, foreign policy and immigration policies relating to

Latin America or South Africa. The freedom to address these

and other vexing issues from a religious perspective should not

be conditioned upon the regulations imposed upon the

Appellant churches by the court below.

Requiring churches to register as PCCs in order to address

the most pressing moral and social issues of our day

substantially burdens the free exercise rights of religious

bodies. Contrary to the history of religious freedom in this

country, the State seeks, in effect, to license those churches

which choose to proclaim their vision of the good in the

Beit Sue

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political order.* As construed by the lower court, the Act not

only requires churches to obtain advance permission from the

State to engage in one of the most fundamental acts of

ministry, it also distorts the public’s perception of that

ministry. Although the time, energy and effort required in

order to comply with the requirements of the Act is

demonstrably burdensome, see testimony of Dean Kelley, Tr.

149, that administrative burden is not at the center of the

concerns of the amici. Nor is the reluctance of a religious body

to register with the State as a PCC a matter of distaste or scorn

for the political order. The religious objection of the amici to

the application of the Act to a religious body is that it distorts

that body’s religious message by communicating to the public

that it is not a religious group acting religiously, but simply

another political interest group acting out of characteristcally

self-interested political considerations. This distortion of the

church’s prophetic ministry constitutes an additional burden

upon free exercise of religion worthy of plenary review by this

Court.

4 This Court has frequently relied on legal history as an aid to

resolving current cases dealing with the Religion Clause. See, e.g.,

Marsh v. Chambers, 463 U.S. 783 (1983); McDaniel v. Paty, 435 U.S.

618 (1978); and Walz v. Tax Commission, 397 U.S. 664, 678 (1970).

Under this approach this Court should not adopt the theory implicit

in the judgment of the lower court because governmental licensing of

religious preaching was one of the historical practices which the First

Amendment was expressly designed to prohibit. See, e.g. W.

McLoughlin, New England Dissent, 1630-1833: The Baptists and the

Separation of Church and State 441-476 (1971); M. Kammen,

Colonial New York: A History 157-158 (1975); and Eckenrode,

Separation of Church and State in Virginia (1910). For a discussion of

the repulsion to licensing of dissemination of views by the Press, see,

e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 801

(1978) (Burger, CJ., concurring), and Lovell v. Griffin, 303 U.S. 444,

451 (1938). And see United States v. National Committee for

Impeachment 469 F. 2d 1135, 1140 (2d Cir. 1972) (no First

Amendment distinction between newspaper editorial and paid

political advertisement, the publication of which does not make the

sponsor a political action committee subject to federal regulation).

a

Even more seriously, the Act has had a chilling effect on the

prophetic ministry of religious bodies. This conclusion is

supported by the uncontradicted expert testimony in this

record; see, ¢.g., testimony of Rev. Dean M. Kelley, JS, 65a.

Indeed, it is likewise clear on this record that the fear of

inhibition of free speech is not at all speculative. The record

discloses that the Act has already begun to silence the

churches. Rev. Maurice Coleman, Pastor of the First Baptist

Church, Waverly, TN, testified that the burden which the Act

imposed on his church was so severe that his church refrained

from speaking out on a similar referendum, despite deeply held

religious convictions on the issue presented to the public in his

community, Tr. 104-112; see JS, 6la-62a. Dr. Thomas J.

Madden, Executive Secretary of the Executive Board of the

Tennessee Baptist Convention likewise testified that other

churches in Tennessee had been deterred from addressing

referendum issues publicly for fear that the government would

label them as PCCs. JS, 63a (impact of the Act on Baptist

churches “devastating, ... chilling and discouraging and

intimidating”). The severity of the chilling effect of the Acct

constitutes a separate reason for plenary review of this appeal.

Having demonstrated that the ability of religious bodies to

make public statements of a religious nature on matters of

public concern is burdened by the application of the Act to

religious bodies, the Appellant churches should be exempt from

its coverage unless the State can demonstrate that it has

utilized the least restrictive means of achieving a truly

compelling governmental interest. Hobbie v. Unemployment

Appeals Commission, 480 U.S. ——, 107 S.Ct. 1046, 1094

(1987); Thomas v. Review Board, 450 U.S. 707 (1981); Sherbert

v. Verner, 374 U.S. 398 (1963). The State failed to meet its

evidentiary burden of proving that any compelling state

interest exists for extending coverage of the Act to religious

bodies.

The view that protection of the integrity and fairness of the

political process is a legitimate and even a “compelling”

governmental interest, is hardly exceptionable as a general

— ere ee ee ee! ZF Tee ee ee

wit aad ate re

it thie ten

tte tion

principle. As the Tennessee Supreme Court stated:

“Considering that the results of a referendum often entail

enduring and significant changes in community life and that

diverse interests compete to influence the public policy of the

- state at every level of political action, the public has a right to

know at a minimum how campaigns on public issues are

financed and by whom.” Bemis Pentecostal Church v. State,

supra, 731 S.W. 2d at 903 (1987); JS, at 11a.

This case, however, involves bona fide religious organiza-

tions attempting to engage in clearly protected activity. Hence

casual invocation of the “infamous Watergate slush fund,” id.

at 904, JS 12a, is spurious, raises false connotations by

innuendo, and does not provide a sufficient justification for the

application of the Act to a religious body wishing to participate

in a referendum. This is true for five reasons. First, the

rationale for restricting involvement in the political process

does not apply with equal force to all groups. As this Court

recognized last Term, a State may have a compelling interest in

limiting the campaign contributions of for-profit organizations,

but a far less significant interest in regulating the political

freedom of a not-for-profit organization. FEC v. Massachusetts

Citizens for Life, 479 U.S. ——, 107 S.Ct. 616 (1986).

Second, this record is wholly devoid of the slightest hint of

“corruption” which the lower court invoked as the rationale

for its rule. As this Court clarified in FEC v. National

Conservative PAC, 470 U.S. 480 (1985), an unspecified concern

about “hypothetical potential for corruption” does not

articulate a rationale for regulating ‘“‘the presentation to the

electorate of varying points of view” on issues of public

concern. Id. at 498. The State offered no proof whatever either

that any political group in Tennessee has ever dissembled to the

point of cloaking itself as a church solely to avoid the

requirements of the Act, or that such musrepresentation is

likely to occur in the future. Upon close imspection, the

governmental interest which the T ee Supreme Court

deemed “compelling” turns out to be y speculative

worry about an “imaginable but ¢ y implausible evil.”

a

Wolman v. Walter, 433 U.S. 229, 260, n.6 (1977) (Marshall, J.,

concurring and dissenting).

Third, even if fraud of this magnitude were to occur, the

State is not without power to sanction it. See, e.g., Ballard v.

United States, 329 US. 187 (1946). A reviewing court,

moreover, need not plumb the depths of its imagination to

discover an equally effective alternative means of enforcing the

governmental interest which the lower court found

“compelling,” for in this case the Tennessee legislature

expressly provided criminal sanctions in the Act wholly

adequate to the governmental interest of protecting against

potential fraud, § 2-10-110 (a). For this reason it is unnecessary

to construe the Act, as the lower court did, to apply across the

board to all religious bodies wishing to be heard on matters of

public concern.

Fourth, this Court should not accept the State’s argument

that its interest in preventing election fraud requires expansive

application of the Act to activity of churches otherwise

protected by the First Amendment because that argument

cannot be squared with the text of the Act. The Act explicitly

exempts from the reporting requirements news organizations

protected under the free press clause of the First Amendment

when, for example, they engage in political speech in the

editorial process, § 2-10-102(3)(B). This statutory provision

renders easy the search for a less restrictive alternative means

of enforcing the interest of the State. All that a reviewing court

must do is require the State to extend to religious bodies

protected under the religion clause of the First Amendment an

exemption for religious organizations wishing to be heard on

matters of public concern similar to that which the Act affords

to news organizations thought to be protected under the free

press clause of the same amendment.

Fifth, unless the lower court is reversed, greater protection

will be afforded to for-profit news organizations than to not-

for-profit religious organizations. Erratic line-drawing of this

sort impermissibly prefers one kind of First Amendment

corporation over other groups protected under the same

Apne.

oo

Amendment. This result is impermissible under Widmar y.

Vincent, 454 U.S. 263 (1981), where this Court ruled that a

public university which creates a forum generally open to

students-may not favor one form of speech over another

because of the religious character of the speech. It is likewise

impermissible under First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978), where this Court invalidated a state

statute prohibiting expenditures by for-profit corporations for

the purpose of influencing the vote on referendum proposals on

the view that this kind of regulation abridges expressive

activity “‘at the heart of the First Amendment’s protection.”

Id. at 776. As Justice Powell stated in Bellotti: “If a legislature

may direct business corporations to ‘stick to business,’ it also

may limit other corporations — religious, charitable, or civic

— to their respective ‘business’ when addressing the public.

Such power in government to channel the expression of views

is unacceptable under the First Amendment. Especially where,

as here, the legislature’s suppression of speech suggests an

attempt to give one side of a debatable public question an

advantage in expressing its views to the people, the First

Amendment is plainly offended.” Id. at 784-785 (emphasis

added). > There is more than a subtle irony that the primary

5 The lower court distinguished Bellotti on the ground that the

Massachusetts statute invalidated in Bellotti imposed direct limits on

speech, unlike the Tennessee Act, characterized as imposing mere

financial disclosure requirements. Bemis, supra, 731 S.W.2d 897, 906

(1987); JS, at 16a. Bellotti may not be disposed of quite so readily. As

this Court stated in Bellotti, to ask whether corporations have free

speech rights is to pose the wrong question. The inquiry should focus

on the type of speech at issue, not its source: “If the speakers here

were not corporations, no one would suggest that the State could

silence their proposed speech. It is the type of speech indispensable to

decisionmaking in a democracy. ... Tre] inherent worth of the

speech in terms of its capacity for informing the public does not

depend on the identity of its source.... In the realm of protected

speech, the legislature is constitutionally disqualified from dictating

the subjects about which persons may speak and the speakers who

may address a public issue. Police Dept. of Chicago v. Mosely, 408

atin

beneficiaries of the statutory exemption in the Act

immensely powerful for-profit news media corporations

that the institutions directly burdened by the ruling of

lower court are less powerful not-for-profit religious bodies.

For these reasons, amici urge this Court to grant plenary

review of the substantial federal questions affecting free

exercise of religion presented in this appeal.

“RBS

(if) Establishment Concerns

Amici are also of the view that substantial federal questions

are presented in this appeal which arise under the

Establishment Clause. Amici do not dispute that the

a <enS churches reflects a

. Edwards v. Aquillard, 482 U.S. ——., 107 S.Ct.

rat 4 Two other criteria set forth in Lemon v. I Kurtzman,

403 U.S. 602 (1971), however, are offended by the decision

below. As amici already demonstrated in the discussion of free

exercise concerns, pp. 5-14, supra, the primary effect of the

application of the Act to the Appellant churches has been to

inhibit their religious activity. A similar, if not identical,

concern is reflected in the manifest tendency of the decision

below to entangle the government excessively in religious

matters properly thought to be within the zone of autonomy

and associational privacy enjoyed by religious organizations.’

US. 92, 96 (1972)." Id. at 777, 784. The lower court's distinction of

Bellotti overlooks the uncontroverted evidence on this record that the

application of the Act to religious bodies has already had the very

effect condemned in Bellotti: governmental preference as to who may

address a public issue.

* This Court has repeatedly clarified that the institutional press

does not have free speech rights superior to those of the general

public. See, e.g. Bellotti, supra, 435 US. at 798 (Burger, CJ.

concurring); Pell v. Procunier, 417 U.S. 817, 834 (1973), Branzburg v.

Hayes, 408 U.S. 665, 684-685 (1972).

See, e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426

US. 696 (1976), Kreshik v. St. Nicholas Cathedral, 363 US. 190

antiian

ne ne

than the record in this case, this Court ruled that

the mere possibility of or potential for such entanglement

sufficed to invalidate an otherwise lawful statute. Aguilar v.

Felton, 473 U.S. 402, (1985). See also Walz v. Tax Commission,

397 US. 664, 674-675 (1970) (sustaining tax exemption of

property used exclusively for public worship because taxation

of such property would have the effect of entangling the

government in religious matters).

gives

i level of entanglement with religion. Tr. 149-150.

Apart from bona fide investigation of fraud, undue influence,

private inurement, or other misconduct, the State has no

business scrutinizing the internal financial affairs of religious

bodies.® As amici demonstrated above, this record does

contain the slightest hint of any basis for legitimat

+

(1960), and Kedroff v. St. Nicholas Cathedral, 344 US. 94 (1952).

should likewise be viewed as inimical to the purpose of the religion

clause. The Kreshik case reinforces this point, for it commands that

the judiciary refrain from intruding on the autonomy of a religious

body, just as Kedroff had prohibited intrusion in the internal affairs

of a religious body by the legislature. In the instant case, it is all the

more necessary that the judiciary express greater care about “delicate

and sensitive questions arising out of the Religion Clauses” where the

Legislature has not affirmatively and expressly directed that a

regulatory burden be imposed upon a religious body. NLRB ».

Catholic Bishop of Chicago, 440 U S. 490, 507 (1979).

5 Congress has manifested sensitivity to these concerns. See, ¢.g.,

LR.C. § 6033 (exempting religious bodies from duty to file detailed

annual financial report); and see I.R.C.§ 7605 (specif ying procedures

to be followed before a church may be audited).

ontition

investigation either of criminal wrongdoing or of civil liability

for a tax offense. Because this Court has “long recognized that

underlying the establishment clause is the ‘objective ... to

prevent, as far as possible, the intrusion of either [church or

state] into the precincts of the other’ ” Lemon, supra, 403 US.

at 614, this Court should grant plenary review of this appeal.

B. The Free Speech Clause Protects Churches No Less

Than Other Concerned Citizens or Groups When They

Engage in Political Speech on Matters of Public

Concern.

The free speech clause grouds a “profound national

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.” New York

Times v. Sullivan, 376 U.S. 254, 270 (1964). Thus this provision

affords another ground for finding unacceptable the restric-

tions on the political speech of religious bodies imposed by the

court below. In another case involving restrictions placed by

the State of Tennessee upon the civil liberties of religious

bodies and their members, Justice Brennan expressly concluded

in McDaniel v. Paty, 435 U.S. 618 (1978) that the fundamental

right to participate in the political process is enjoyed not only

by secular institutions and private citizens, but also by religious

bodies and their members:

[Religious ideas, no less than any other, may be

the subject of debate which is ‘uninhibited, robust,

and wide open’ [citing Sullivan]... . [T]hat public

debate of religious ideas, like any other, may arouse

emotion, may incite, may foment religious divisive-

ness and strife, does not rob it of constitutional

protection. The mere fact that a purpose of the

Establishment Clause is to reduce or eliminate

religious divisiveness or strife, does not place

religious discussion, association, or political partici-

pation in a status less preferred than rights of

antes

discussion, association and political participation

generally.

Id. at 640; see also plurality opinion of Chief Justice Burger,

id. at 626. Similarly, in Walz v. Tax Commission, 397 U.S. 664

(1970), this Court stated:

Adherents of particular faiths. and individual

churches frequently take strong positions on public

issues including, as this case reveals in the several

briefs amici, vigorous advocacy of legal or constitu-

tional positions. Of course, churches as secular

bodies and private citizens have that right.

Id. at 670?

the State does not impose an absolute ban on the

political speech of religious corporations in the instant case, it

does seek to impose regulations which significantly burden the

ability of religious bodies to announce their religious message

on matters of public concern. It is well settled that any statute

which 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 least

restrictive of fragile free speech rights, which need “breathing

space” in order to survive. See, ¢.g., NAACP v. Button, 371 U.S.

415 (1963). Hence the same analysis set forth as free exercise

concerns, pp. 5-14, supra, applies with equal force to the

analysis of the gudement of the lower court under the free

speech clause. '° Because the view of the free speech clause

9 See also McRae ¥. Califano, 491 F Supp. 630 (E.D.N.Y. 1980),

rev'd on other grounds, sub nom. Harris v. McRae, 448 US. 294

(1980): “It is clear that the healthy working of our political order

cannot safely forego the political action of the churches, or

discourage it. The reliance, as always, must be on giving an alert and

critical hearing to every informed voice, and the spokesmen of

religious institutions must not be discouraged nor inhibited by the

fear that their support of legislation, or explicit lobbying for such

legislation, will result in its being constitutionally suspect.” Jd. at 741.

© Whether stated as free exercise concerns or free speech

————————VO

—_

espoused by the lower court is counterintuitive and flies in the

face of the great purposes of political speech in our democracy,

this Court should grant plenary review of this appeal in order

to address the substantial questions presented under the free

speech clause.

Il,

THIS COURT SHOULD GRANT PLENARY REVIEW

OF THIS APPEAL IN ORDER TO GIVE CLEAR

GUIDANCE TO THE LEGISLATURES OF THE

SEVERAL STATES CONCERNING THE LIMITS OF

STATE CAMPAIGN FINANCE LAWS PURPORTING

TO REGULATE RELIGIOUS NOT-FOR-PROFIT OR-

GANIZATIONS PUBLICLY ENGAGED IN MORAL

ADVOCACY ON MATTERS OF PUBLIC CONCERN

PRESENTED TO THE ELECTORATE FOR THEIR

DELIBERATION AND DECISION.

Because the decision of the court below can have a national

impact on religious freedom far beyond the confines of the

present litigation, amici append to this brief a table of state

statutes regulating various aspects of campaign financing. !!

concerns, three conclusions are unavoidable on this record: (1) the

Act has the chilling effect of inhibiting religious expression on

matters of public concern; (2) the State has not shown a compelling

governmental interest to justify the intrusion on protected activity;

and (3) the exemption in the Act for news organizations points to a

less burdensome means of achieving the governmental interest.

'' All fifty states impose requirements on groups attempting to

communicate with the electorate in candidate elections. Thiry-eight

states impose registration and reporting requirements in elections

concerning referenda or other ballot measures concerning general

public policy. In addition to the Tennessee Act challenged as applied

in this appeal, six other states have similarly exempted the press from

registration and reporting requirements.

This appeal presents a case of first impression. No other

state decision of which amici are aware has expressly ruled

that the provisions of the state campaign financing law must be

extended to a religious body engaged in moral advocacy on

issues of public concern. Only one statute, Iowa Code § 56.2.6,

expressly includes religious organizations within the definition

section relating to covered political action committees. The

plain meaning of the terms of the various state statutes

summarized in the Table in the Appendix, however, evinces

neither a clear expression of intent to regulate religious bodies,

NLRB y. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979),

nor any evident concern for the delicacy of religious freedom

threatened by including religious bodies among regulated

political action committees. This court should grant plenary

review of this appeal in order to give clear guidance to the

legislatures of the several states concerning the limits of state

campaign finance laws purporting to regulate religious not-for-

profit organizations engaged in moral advocacy on matters of

public concern presented to the electorate for thier deliberation

and decision.

_ we

CONCLUSION

For the reasons set forth in this brief, amici curiae urge this

court to grant plenary review of the substantial federal

questions presented in this appeal.

Respectfully submitted,

EDWARD McGLYNN OLIVER S. THOMAS

GAFFNEY, JR.

(Counsel of Record) Baptist Joint Committee

Loyola Law School on Public Affairs

1441 West Olympic Blvd. 200 Maryland Ave., N.E.

Los Angeles, CA 90015 Washington, D.C. 2002

(213) 736-1157 (202) 544-4226

Attorneys for Amici Curiae

Of Counsel:

MICHAEL J. WOODRUFF

SAMUEL E. ERICSSON

Center for Law & Religious Freedom

Post Office Box 1492

Merrifield, VA 22116

(703) 560-7314

Note: The attorneys for the Amici Curiae wish to express their

gratitude to William T. Gillespie, J. D. Cand. 1987, Loyola

Law School, for valuable research assistance in the preparation

of this brief, including the Table of State Statutes in the

Appendix.

i poe a og Ae eT

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APPENDIX

Table of State Statutes

Regulating Campaign Expenditures

Part toe

Table of State Statutes Regulating Campaign Expenditures

Elections Exemptions

State Citation Candidate/Issue <$ Purpose Press

Alabama 17-22-1 et seq. yes /yess y = 22

Alaska 15.13.010 et seq. yes/yes y n n

Arizona 16-901 et seq. yes / no y n n

Arkansas 3-1102 et seq. yes / no y n n

California 12400 et seq. yes/yes y n y

Colorado 1-45-101 et seq. yes/yes y n n

Connecticut 9-333 et seq. _ yes/yes y n n

Delaware 8001 et seq. yes / no y n n

Florida 106.01 et seq. yes/yes y n n

Georgia 21-5-1 et seq. yes/yes y n n

Hawaii 11-1 et seq. yes/yes y n n

Idaho 67-6601 et seq. yes/yes y n n

Illinois 9-1 et seq. yes/yes y n n

Indiana 3-4-1-1 et seq. yes/yes y n y

Iowa 56.1 et seq. yes/yes y n n

Kansas 25-4143 et seq. yes / no y y n

Kentucky 121.015 et seq. yes/yes y n n

Louisiana 18:1481 et seq. yes / no y n n

Maine 1411 et seq. yes/yes y n y

Maryland 33:26.1 et seq. yes/yes y n n

Mass. C55.1 et seq. yes/yes y n n

Michigan 4.1703(1) et seq. yes/yes y n n

Minnesota 10A.01 et seq. yes/yes yy y n

Mississippi 23-3-1 et seq. yes / no y n n

Missouri 130.011 et seq. yes/yes y y y

Montana 13-1-101 et seq. yes/yes y n y

Nebraska 49-1401 et seq. yes/yes y y n

Nevada 2941.002 et seq. yes / no y n n

New Hamp. 664:1 et seq. yes/yes y n n

New Jersey 19:44A-1 et seq. yes/yes y n n

New Mexico 1-19-2 et seq. yes/yes y n n

New York 14-100 et seq. yes/yes y n n

N. Carolina 163-278.6 et seq. yes/yes = y n n

N. Dakota 16.1-08-01 et seq. yes/no y y n

Ohio 3516.10 et seq. yes/yes y n n

Oklahoma 74 4200 et seq. yes/yes on n n

Oregon 260.005 et seq. yes/yes y n n

a ee

Elections Exemptions

State Citation Candidate/Issue <$ Purpose Press

Pennsylvania 3221 et seq. yes/yes y n n

Rhode Island 17-25-2 et seq. yes/yes y n n

S. Carolina 8-13-610 et seq. yes/yes y n n

S. Dakota 12-25 et seq. yes/yes y n n

Tennessee 2-10-101 et seq. ys/ye y n y

Texas 14.01 et seq. yes/yes y n y

Utah 20-14-1 et seq. yes / no y n n

Vermont 2101 et seq. yes / no y n n

Virginia 24.1-251 et seq. yes / no y n n

Washington 42.17 et seq. yes/yes y y n

W. Virginia 3-8-1 et seq. yes/yes y n n

Wisconsin 11.001 et seq. yes/yes y n n

Wyoming 22-25-101 et seq. yes/yes' y n n

DEFINITIONS

1) ELECTIONS: Any primary, general, or special election.

2)

Candidate: Elections which involve voting for a particular

individual for state or local office.

Issue: Elections for a referendum or other ballot measure

concerning general public policy.

EXEMPTIONS: Statutory provision, AG opinion, or case

excluding a group from coverage under the registration and

reporting requirements.

<$: Y in Table indicates an exemption for expenditures and

contributions below a specified dollar amount.

Purpose: Y in Table indicates that in determining whether a

group constitutes a political action committee, state authorities

are allowed to consider in some fashion the primary purpose or

nature of the contributing or expending group. The statutes either

exempt groups which are less political in nature, or allow a higher

expense threshold before the registration and _ reporting

requirements are triggered.

Press; Y in Table indicates that the statute provides an

exemption for the institutional press. N in Table does not mean

that the press is necessarily included within the scope of the

statute, but that no express exemption, case law, or Attorney

General opinion could be located which clearly exempts the press

from the registration or reporting requirements of the statute.

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

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

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

County of Los Angeles, over the age of eighteen (18) years and

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

address is 10835 Santa Monica Boulevard, Los Angeles,

California 90025; that on September 23, 1987, I served the

within Brief Amicus Curiae in said action or proceeding by

depositing true copies thereof, enclosed in a sealed envelope

with postage thereon fully prepaid, in the United States mail at

Los Angeles, California, addressed as follows:

Clerk, United States Lee Boothby, Esq.

Supreme Court Boothby, Ziprick & Yingst

One First Street, NE. 4545 42nd St., N.W:

Washington, D.C. 20543 Suite 201

(Original + 40 Copies) Brandywine Plaza

Washington, D. C. 20016

Hon. W. J. Michael Cody Attorney for Appellants

Attorney General and Reporter (3 Copies)

450 James Robertson Parkway

Nashville, TN 37219

Attorney for Appellees

(3 Copies)

I declare under penalty of perjury that the foregoing is true

and correct. Executed on September 23, 1987, at Los Angeles,

California.

Jathes D. Jones

(Original signed)