The Last Word: Contempt of Court

If this is contempt of court, let’s hope we’re all guilty. Back in 1980, a pro-abortion activist named Lawrence Lader brought suit against the Internal Revenue Service, the Department of the Treasury, and (for good measure) the Roman Catholic Church, attempting to strip the Church of its tax-exempt status. Lader and his organization, the Abortion Rights Mobilization (ARM), claimed that the Church had violated the rules governing tax-exempt organizations, by endorsing candidates for public office.

Lader and ARM had very little evidence. Some prominent Catholics (notably Boston’s Cardinal Medieros) had urged voters to reject abortion. Some Catholic newspapers had informed readers about the various candidates’ stands on the issue. But the ARM complaint could not identify any occasion on which an official Church representative endorsed a candidate for office. Church leaders had merely urged Catholics to follow the age-old dictates of the faith. In the absence of any real evidence, the case should have ended there.

However, Lader and ARM had found an unusual judge in New York’s federal court. Judge Robert Carter allowed the case to continue — although he did exclude the National Conference of Catholic Bishops (NCCB) and U.S. Catholic Conference (USCC) from the case, leaving the IRS and Treasury to defend the tax exemption. The lawsuit bubbled along fairly quietly for several years. Again, since there wasn’t much evidence, not much was happening.

Then, early this year, Judge Carter granted one of ARM’s fondest wishes: he issued a subpoena for a group of internal NCCB-USCC documents. ARM had contended that these confidential documents, notably including the bishops’ “Pastoral Plan for Pro-Life Activities,” would demonstrate Church involvement in partisan politics.

However, the NCCB and USCC refused to honor Judge Carter’s subpoena. These were internal Church affairs, they pointed out, covered by the free-exercise clause of the First Amendment. Early in May, Judge Carter held the NCCB-USCC in contempt of court, and invoked a fine of $100,000 a day until the bishops surrendered the documents.

Meanwhile, the NCCB and USCC are appealing the contempt citation. That appeal should have two effects. First, assuming that the appeals court judges are familiar with the First Amendment, the contempt citation will be set aside. Second, that appeals court should also notice that the ARM suit is nonsensical, and toss it out of court entirely.

Still, even if the case is promptly resolved, this absurd lawsuit raises some frightening questions about the status of religious freedom in this country. Can one dedicated anti- Catholic, with the help of one compliant judge, really plunge the nation’s largest religious denomination into a contempt-of-court citation? And can federal courts decide which activities should qualify as properly religious?

Many people — including more than a few contributors to this journal — sometimes complain that the U.S. bishops have become improperly involved in political affairs. But this is emphatically not a case in point. If the bishops cannot involve themselves in the public debate over abortion, the First Amendment means nothing.

Yes, it’s true; the bishops — along with Catholics in general — oppose abortion. But then the Church has consistently opposed abortion for centuries. Yes, in the last several years, the issue has become prominent in partisan political battles. However, that was not the bishops’ doing. Must they now suddenly be quiet, now that the abortion issue is before Congress? Must religious leaders stop speaking about a topic once it appears in the political arena? If some crackpot group begins lobbying for the legalization of contract murder, should the bishops then be silent on that issue as well? Or is it OK for the bishops to mention the Catholic teaching, as long as they don’t try to convince anyone.

Over the years, the NCCB has carefully observed the rules governing the political involvement of tax-exempt organizations. True, any intelligent person can sometimes guess what the bishops think about a given candidate, based on his views about abortion. But then everyone knows what the Institute for Policy Studies thinks about the MX missile, and everyone knows what the Heritage Foundation thinks about tax cuts. Tax-exempt organizations are allowed to promote their views; indeed most such groups are set up precisely in order to advocate a point of view. And in the case of the NCCB and USCC, the particular point of view is itself protected by the First Amendment right to free exercise of religion.

When bishops make plans to promote their Church’s teachings, isn’t that clearly an example of the free exercise of religion? And when a federal judge demands an accounting of those pastoral plans, isn’t that clearly an (unconstitutional) interference with that right? If the courts can decide which issues qualify for religious protection, doesn’t that make them — the courts — the ultimate arbiter of religious faith? Wait. Let’s get back to basics. Has Judge Carter read the First Amendment?

The whole sad episode brings to mind a courtroom scene from a Mae West movie. An irate judge asks the star, “Are you trying to show your contempt for this court?”

“No,” she replies, “I’m trying to hide it.”


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