|Against the Gates of Hell
Will the Wall Come Tumbling Down?
From the Highest Bench Reviewing the language of recent decisions by the United States Supreme Court, it can hardly be doubted that the state of California has thudded a battering ram against the wall separating Church and State.
These rulings emphasize that government is not only forbidden to intrude into religious organizations, but that it cannot engage in activity that even threatens an entanglement in church affairs or religious matters.
Recently the Court ruled,* that government subsidies to help pay salaries of parochial school teachers were unconstitutional because such arrangements would permit state officials to examine religious school records and decide which expenses were religious and which were secular. The Court's opinion, delivered by Chief Justice Warren Burger, stated that this "post audit power to inspect and evaluate a church-related school's financial records" would result in "an intimate and continuing relationship between church and state."
Ordinarily, the Court stated, arguments on political issues are "normal and healthy" signs of our democratic system of government. However, political division "along religious lines" is quite different. This, the Court wrote, "was one of the principal evils
* Lemon v. Kurtzman, 403 U.S. 602. A similar statute was reviewed and rejected in New York v. Cathedral Academy, 43 U.S. 125. In this latter case the Court observed that this sort of detailed inquiry would of itself constitute a significant encroachment on Constitutional protections.against which the First Amendment was intended to protect. The political divisiveness of such conflict is a threat to the normal political process. To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse and obscure other issues of great urgency." Thus the Court neither confused nor obscured the issue in this landmark ruling. The decision went on:
We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems which confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief. [Emphasis added.] In 1947, the Court had also driven this point home in language that could hardly be misunderstood: "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against the establishment of religion by law was intended to erect 'a wall of separation between church and state.'"*
In another decision handed down as recently as March, 1979, the Supreme Court again reaffirmed and reemphasized this prohibition in holding that the National Labor Relations Board could have no jurisdiction over Catholic parochial schools, since so to construe the statute would necessarily bring it into conflict with the First Amendment. Here is what the Court says:
* Evenon v. Board of Education, 330 U.S. 1, 15-16.
Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.... The resolution of such charges by the Board [of unfair labor practices] in many instances will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the schools' religious mission. It is not only the conclusions that may be reached by the Board which may infringe on rights guaranteed by the religion clauses but the very process of inquiry leading to findings and conclusions.* [Emphasis added.] This right is so important that it is protected not only against actual infringement, but against the very risk of infringement.
I do not intend or claim to treat the massive subject of church-state relations exhaustively.** There are four other rulings by the Supreme Court, made in different eras of our history, that should be cited here:
...Christianity is not established by law, and the genius of our institutions requires that the Church and the State should be kept separate... The State confesses its incompetency to judge spiritual matters between men or between man and his maker... spiritual matters are exclusively in the hands of the teachers of religion. -Melvin v. Easley, 52 N.C. 356 (1860)
The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.
-Watson v. Jones, 13 Wall SO U.S. 679 (1872)
The First Amendment to the Constitution... was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his maker and the duties they impose as may he approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the rights of others, and to prohibit legislation for support of any religious tenets, or the modes of worship of any sect.
-Davis v. Beason, 133 U.S. 33 (1980)
We cannot have it both way. Religious teaching cannot be a private affair when the state seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to taxing citizens of one faith to aid another, or those of no faith at all. If these principles seem harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same Constitution that alone assures Catholics the right to maintain these schools... -Pierce v. Society of Sisters, 268 U.S. 510 (1925)
* NLRB v. The Catholic Bishop of Chicago, March 21, 1979, Case No. 77-152, at page 12 of the opinion. Nothing in the language of any of the Supreme Court cases says that rights so important and so fundamental in character are dependent upon the niceties of form or technical procedure.
** The reader who desires further and far more complete discussions can find them in many books, notably Church State and Freedom and God, Caesar, and the Constitution, both by Leo Pfeffer (Beacon Press, Boston). Pfeffer, who teaches political science at long Island University, has argued numerous church-state cases before the Supreme Court.
Nowhere is there the slightest suggestion that a church may be simply characterized as a charitable trust and thereafter be invaded, taken over, and examined at will, or that First Amendment rights are forfeited if a church or church group chooses to incorporate rather than to operate as a mere voluntary association.
At the working, trial-court level, these bedrock principles are sometimes obscured in the press of routine business. That, of course, is why we have appellate courts. What is regrettable for our system of justice is that such outrage, humiliation, damage, and hardship should have been visited upon a religious institution while in the very process of defending and vindicating its rights and its innocence.
Why We Were Targeted Why did the state of California go adventuring against the Worldwide Church of God? And why at this time in history? It would be illuminating to explore the reasons.
There can be little doubt that the horror in Jonestown, the religious colony in Guyana that was transformed into a death cult late in November of 1978, was a precipitating factor. The People's Temple, it will be recalled, had been based in California before its leader, the Reverend Jim Jones, took his followers to the 27,000-acre jungle plantation to establish his remote new world. The California attorney general, along with the U.S. State Department and the Federal Bureau of Investigation, was smarting under growing attacks, and charges that the mass ritual suicides of some 900 men, women, and children could have been prevented. Critics pointed out that Jones's practices in his San Francisco temple had become increasingly bizarre, foreshadowing the horror that was to come. The Jonestown event, moreover, occurred as Americans were seeing their children join such religious groups as the "Moonies" and the Hare Krishnas, organizations whose doctrines and activities were beyond the understanding of most people.
The attorney general sought to capitalize on the rising fears that these events had fomented. Aware that the Worldwide Church of God was not well understood, believing that we too would be classed in the minds of Americans as a "cult," he apparently thought that public sentiment would not be aroused very strongly if he acted against us.
This leads quite logically into a second rationale for the coup. As a minority denomination, we have frequently been confused over the years with the many hundreds of other religious groups in the country to which we bear little if any resemblance. The attorney general apparently had classed us with those that utilize radio and television to raise money.
The fact is that we never solicit funds from the public. The general public does not know this and apparently the attorney general didn't know it either. I am not saying that those who ask for contributions are wrong: that is their modus operandi, their feeling, and their commitment toward what they are doing. However, they are being sharply criticized for their actions, and the attorney general lumped us with them.
The Garner Ted situation was another contributing element. Because it was highly sensationalized in the media, the attorney general and those with whom he was willing to work got the impression that we were a divided Church, and that if they landed on our doorstep there would be no unified resistance whatever. They were unaware that the dissenters, though vocal, were actually few in number. They believed — so very erroneously, it turned out — that a large group of members was just waiting for "the old man" to be thrown out, with me and the so-called "palace guard," and for the others to be installed in our place.
Finally, a personal one-way vendetta cannot be discounted. The Los Angeles Times has pointed out that Tapper, the deputy attorney general who led the assault on the Church, was in the "bowels" of my class at law school in which I graduated first. It is understandable, and quite human, that anyone in the "bowels" of anything can be envious of those who achieve higher distinction. But if envy has so distorted the soul of Lawrence Tapper that he would seek to bring down a Church of God to give himself a measure of solace, I pray for his soul.
The Common Peril A legitimate question arises: What about individual wrongdoing? What can be done, should be done, if a high officer in a church is actually appropriating funds for his own use?
At the threshold, it is well to observe that Constitutional protections are not without their price. If we were simply to discard any guarantee which, while protecting the innocent and the worthy, at the same time sheltered wrongdoing and shielded the guilty from justice, we would very quickly be without any guarantees whatever. All we need to do is reflect on the number of criminals who have "taken the Fifth," or how many defendants, obviously guilty of the most revolting crimes, have been turned loose because some technical infraction of Fourth or Fifth Amendment guarantees invalidated a confession or resulted in the exclusion of competent evidence because it was obtained in the course of an illegal search or seizure. So the fact that a sexton or minister might occasionally steal or embezzle or defraud is no justification for tearing up the First Amendment.
On the other hand, the fact that the First Amendment exists does not by any means imply or require that such conduct must be protected or condoned. Indeed, wrongdoing should be pursued, investigated, prosecuted, and, if conviction follows, punished, and nothing in the First Amendment or the cases suggest otherwise. No member of the Worldwide Church of God (those accused not excepted) has ever even hinted that wrongdoing in that Church or any other church is clothed by the First Amendment with immunity from prosecution.
It is important, however, to make a very important distinction: Crimes are committed not by institutions (including churches) but by individuals. If individual wrongdoing has been committed, then the individuals responsible should be investigated, and if there is evidence that they have committed crimes, whether embezzlement, fraud, theft, or whatever, they should be prosecuted.
Furthermore, the state does not need the powers it claimed to have under Section 9505 in order to investigate and pursue wrongdoing. It already possesses the means necessary to deal with such conduct, as well as the tools by which to develop evidence of such wrongdoing if it exists.
All the state has to do is to convene a grand jury and subpoena witnesses, records and other competent evidence, under accepted rules of procedure and subject to recognized safeguards accorded in such proceedings with respect to privileged matters and Constitutional rights. There is no reason whatever why this could not have been done in the present case, and there has been no justifiable explanation offered as to why it was not done. The conclusion appears inescapable: that the attorney general simply did not have any credible evidence of specific wrongdoing and therefore determined to embark on what is classically known as a fishing expedition.
The enormity of what was done here is perhaps brought into somewhat better focus if one but asks: What if this had been Stanford University, whose principal officer was accused of stealing or pilfering? Or a major bank? Can one imagine that the attorney general, instead of investigating and prosecuting the individual officer, would attempt to throw the university or the bank into receivership?
A prosecutor would normally seek the cooperation of the employees and officers of the organizations. He would investigate, build a case against the individuals, and prosecute them.
Even so, we frequently read of embezzlements that go unpunished simply because the bank or university or other institution, as a matter of policy, does not wish to undergo the notoriety and public embarrassment of having one of its officers prosecuted, or to incur the risk of possibly being sued for damages at some later date, should the accused be acquitted.
One need only apply these same principles to a church in order to bring the picture back into normal focus and perspective. This perspective is reinforced when we recall that religious institutions, unlike commercial ones, are protected by the First Amendment.
In the mind of the detached observer, another line of thought that flows naturally from this situation frequently runs as follows: If there has been no wrongdoing, and the Church's finances are in order, why is it fighting so hard to prevent an audit? Does it have something to hide? What is it attempting to cover up?
This is a natural, but dangerous, line of reasoning and one that the state has actively encouraged in our case. There are several answers to these questions.
First, there are many things that people do not hesitate to do on a voluntary basis (that is, when it is their option to do it or not to do it), but which they resist when someone applies force, wrongfully and against their will. For example, many people voluntarily contribute to the Community Chest, the Red Cross, and other good works. They would undoubtedly, however, refuse or resist if someone attempted to force them to do so at the point of a gun. By the same token, an individual might make available personal financial information, which he was under no obligation to disclose, on a voluntary basis, but resist such disclosure if someone attempted to extract it from him by putting his arm in a hammerlock.
There is a more subtle danger involved in this process also, particularly in the case of individual rights. If one yields and acquiesces in the demand, even though illegal or unconstitutional, he may later be held to have waived his rights and his protection by the very act of cooperating.
So at the outset, the Church and the individuals in this case were presented with a cruel dilemma. They had been publicly accused by the state, in the most gross and intemperate terms, of wholesale theft. These charges were endlessly repeated in the public press and ultimately became imbedded in the public consciousness to the extent that the very mention of the Church or the individuals involved evoked an assumption of their guilt. Yet there was no evidence to support these charges, and the evidence to establish their innocence lay in the impeccable financial records that they had kept and maintained. Nevertheless the state had wrongfully and illegally seized those records and was systematically poring over them, exposing and extracting information of every kind and description, including matters having nothing to do with financial data and which, by every settled law and standard, were entitled to absolute protection, such as lawyer-client correspondence, priest-penitent communications, membership lists, tithing records, and so on.
The Church, which had voluntarily cooperated with the IRS on repeated occasions in the past and had, as a consequence, thoroughly satisfied the federal government that its financial housekeeping was in perfect order and demonstrated that it had no need or wish to conceal, was confronted with an entirely different situation in dealing with the state of California. The attorney general, who would have received the same cooperation had he proceeded in the same manner as the IRS, instead chose to assume an adversary stance: he put a gun to the Church's head and forcibly seized its property and records. Having been forced by the state into a litigation posture, the Church had no choice but to play by those rules, since, by failing to do so, it risked the waiver of its own rights and risked having its conduct construed as an admission that the state's action was legitimate, that it had a right to do what it was doing. In other words, the Church was damned if it did and damned if it did not.
The gross unfairness of this situation is demonstrated by the fact that the Church's books were in exemplary shape, its accounting system was exceptionally modern and up to date, and its internal and external controls were comprehensive and thoroughly professional. Furthermore, the foundation filed detailed financial reports annually with the attorney general, which are a matter of public record, and the college and Church both filed annual information documents with the Franchise Tax Board. A substantial amount of information was regularly disclosed, as a matter of course, and of record publicly.
As pointed out above, the attorney general, if he had honestly wished only to uncover evidence of individual wrongdoing and either to establish its existence to his satisfaction or rule it out, could easily have sought the voluntary cooperation of other Church officials or, failing to obtain this, have convened a grand jury to compel the production of evidence.
So the bottom-line answer to the all-important question is: No! Neither the Church nor the individuals had or has anything to hide, nor have they ever attempted to hide it. On the other hand, they do have a great deal of importance to protect: their names, their reputations, their integrity, and the integrity of their Church, its very livelihood and well being, all of which have been severely damaged by the attorney general's unwarranted assault.
Americans are known for their sense of sportsmanship and fair play. Thus, knowing the facts of this case, fair-minded men and women can only be deeply offended by the suggestion that the defendants' legal resistance to unprovoked and unwarranted attack is itself evidence that they have something to hide. They must also reflect thoughtfully on the fact that rights of individual privacy don't mean very much if public branding is to be the inevitable consequence of their assertion.
It should also be borne in mind that despite the state's tactics, the Church and its officials, without waiving their basic rights, have formally made available to the attorney general the audited statements for the Church, college, and foundation during the years mentioned in the complaint and have, furthermore, formally offered, on a consensual and voluntary basis, to make available to the attorney general the results of the audited examination currently being carried out by Arthur Andersen & Co., when it is completed.
The specific allegations which the attorney general urged on Judge Pacht and which, according to the record, persuaded him to act in the first instance, proved to be untrue. Not only did the attorney general not have evidence to support them, but one of his informants states that on the morning of the same day one of his deputies was affirmatively advised that the principal allegations were unsupported and untrue.
The dark charges of shredding, destruction, and carrying off of records have evaporated for lack of any credible proof and in the further light of testimony by the receiver's own auditors that the Church's computer operation is "one of the most modern on the West Coast."
No evidence has been produced to demonstrate that Messrs. Armstrong, Rader, or Helge have "siphoned" or "pilfered" anything. A highly respected national accounting firm* retained by the receiver spent a month and a half auditing the financial records of the Church, the college, and the foundation and, through the date of its withdrawal, was unable to offer any support to the state's charges.
It is also apparent that even if evidence of individual wrongdoing had existed, the state's law enforcement agencies possessed ample means to pursue, uncover, and prosecute individual wrongdoing without the necessity for attacking the Church, throwing it into receivership, isolating its members, seizing its property and records, destroying its credit and financial standing, and blackening its reputation.
* Peat, Marwick & Mitchell. But if none of this was necessary to correct wrongdoing, what then was the attorney general really seeking to achieve by the spectacular coup d'etat he mounted in order to seize possession of the Worldwide Church of God?
The answer is that he, the attorney general, is attempting to establish the state's right to regulate religion in the state of California!
Just as the Public Utilities Commission regulates utilities, the Coastal Commission regulates the use of property in the coastal zone, the Interstate Commerce Commission regulates the transportation industry, the attorney general seeks to review and determine what property churches may or may not sell and for what prices, what contracts they may and may not enter into and with whom, what properties they may or may not remove from the state of California. According to him, such property belongs to the people of California, even though it may have been contributed by people from all over the world.
This is what emerges from the frightening concepts articulated by the state's representatives in this case, consistently and repeatedly, as emanating from the charitable-trust concept.
We have here more than a mere "risk" of infringement of First Amendment rights. We have the ultimate abridgement and destruction of them. It is not the "camel's nose" under the tent; it is the camel's total occupation of the tent and the dispossession of its inhabitants.
This is the true significance of the charitable-trust concept.
"Protection" was the ultimate justification urged by the attorney general for the appointment of a receiver: "protection and preservation of the Church's assets." Viewing the devastation wrought by this "protective" invasion, one might be moved to speculate on what additional damage the state's representatives could have done even had they not been so benevolently motivated.
The founders of this republic were moved to erect the First Amendment's protective barriers simply because their memories were long, and they clearly realized what can result from the iron grip of the State's "protective" embrace.
If history teaches anything, it is the bloody lesson that in religious wars and struggles, more death, suffering, and persecution are meted out under the claim of "protection" than almost any other guise.
When Tomas de Torquemada was applying the thumbscrew and breaking bodies on the rack in the service of the Spanish Inquisition, he was not wreaking vengeance on these hapless souls or torturing them because he hated them. He was attempting to protect them from their own error and wickedness, and to save them for their ultimate salvation. When Queen Mary I ("Bloody Mary") brought fire and destruction on England's Protestants, she did so under the same soiled banner of protection as, in like manner, did Oliver Cromwell a hundred years later in his equally bloody suppression of the Catholics in Ireland and England.
To the extent that these lessons of history are lost, it will be necessary, as George Santayana observed, to repeat them. Perhaps the spectacle that has been acted out in California in recent months will serve to jog men's memories and reawaken their vigilance in this respect. If so, then the damage that has been done there may not be altogether in vain.
The "protection" exercised in this case, consistent with historical example, has been wielded with a cynicism bordering on the vengeful, and its net effect has been to damage and destroy. Warren Abbott, a senior assistant attorney general, was asked by a reporter for the Los Angeles Times whether all of this "protection" didn't come at a rather high price for the Worldwide Church of God, suggesting that by the time the Church had paid the staggering bill for such protection, there might be few if any assets worth protecting. Abbott admitted that this was a possibility. But if that happened, he added, it would be the Church's fault for resisting, not the attorney general's.
These attitudes and consequences are not exceptional; they are typical. They are the inevitable results that occur when Church and State become entangled, as history demonstrates, if we would but heed it.
Ultimately, of course, the State cannot prevail, but only because this particular Church refused to roll over and play dead. It resisted and will continue to resist, but this is something it can do only because the Church's leadership has the overwhelming support of its members, and the major part of this constituency lies outside the state of California.* Were it a small church or one wholly within the state, it would by this time have succumbed to the onslaught, and hardly a ripple would be left to mar the surface and mark the point where the victim went under. This lesson should not be lost in recalling this case.
The state struck in a manner that was calculated to knock out the victim and kill its resistance before it could mount a defense or establish its innocence. Under ordinary circumstances, the victim would never have had the opportunity to do so.
Unless intelligent and reasonable men recall these things and determine to prevent their repetition, they will occur again, for this is the very nature of the State. This is why the Constitutional protection was originally needed.
Nearly two hundred years later, the need for these guarantees is more urgent than ever. The wall must stand. If it cracks and shatters, subjecting a small church to State-dictated control and limitation, the state of California will be free to proceed against other churches, synagogues, and religious institutions of all kinds.
Once the dike cracks in California, the flood will engulf all of America. The guarantees of the religion clauses of the First Amendment will float away in the torrent.
* See appendix E.