Father's Appeal Receives Unprecedented Support -- The Latest News about the Court Case

John Biermans and Susan Henry, HSA Legal Department
April 1984

Left to right: Associate Justices John Paul Stevens, Thurgood Marshall, William H. Rehnquist, Byron R. White, Harry A. Blackmun, William J. Brennan, Chief Justice Warren E. Burger, Associate Justices Sandra D. O'Connor, Lewis F Powell, Jr.
IMPORTANT: Please, don't contact or write to any of the above mentioned justices.

In the last few months, Father's conviction has been transformed into a source of national outrage. Hundreds of newspaper articles have been published, showing the extent to which the American people are becoming informed about the injustice that Father has suffered. One of the most recent examples was the lead editorial in the Los Angeles Times, which is considered to be one of the top three newspapers in America. Here are some excerpts from this extraordinary endorsement of Father's appeal:

The tax fraud conviction of the Rev. Sun Myung Moon is an invasion of the religious freedom of the founder and leader of the Unification Church and his followers. That is not to say that the government may never challenge the raising and expenditure of funds that a group claims it solicits and spends for religious purposes. Proof, for example, that a religious claim is advanced to cover wholly secular activities would certainly warrant government action.

But no such proof was offered in the prosecution of Moon. That fact, among others, has prompted mainline religious organizations to support the Korean-born evangelist in his appeal of his 1982 conviction to the Supreme Court...

Laurence Tribe of Harvard University, a constitutional lawyer representing Moon, said that the churches have cause to be alarmed. In this case, Tribe said, the government "simply proceeded with a theory that ignored Rev. Moon's relationship to his followers...a theory that treated the intent and religious identity of the assets' donors as wholly irrelevant..." The government, according to Tribe, cast Moon in "the role of an ordinary high- ranking businessman..."

What concerns religious groups is the assertion of power by the government to define the way the mission of a church is to be carried out. Earl Trent of the American Baptist Churches, representing the concerns of religious leaders, sees the decision as a "breach of religious liberty." Religious leaders argued that upholding Moon's conviction would "establish the proposition that judges and juries may simply override a religion's own decisions about how to organize itself...and how to expend church resources." Under these circumstances, the prosecution of Moon is an intrusion by the government into an area forbidden to it by the First Amendment...

The Supreme Court should reverse Moon's conviction and reaffirm the principle that the First Amendment makes no distinction between popular and unpopular religions or orthodox and unorthodox faiths.

One of the main reasons that the media has become so supportive is the unprecedented number of amicus curiae (friend of the court) briefs that have been filed asking the Supreme Court to hear Father's appeal. Constitutional experts say that no other case has ever received such powerful support at this stage. One leading constitutional expert told us that the amicus briefs that have been filed in Father's case are unprecedented in this Court's history -- even more than Brown v. Board of Education (desegregation of schools) which has always been recognized as the leading civil rights case: "No case can match the scope, breadth and competency of these amicus briefs."

So far ten amicus briefs from 21 different groups and individuals have been filed with the Supreme Court. These briefs are having an immediate and overwhelming impact on everyone who sees them. They are totally amazed by the diversity, competence and compelling quality of each brief. Even our closest allies have been reborn, which is not to mention that many of our former enemies have been completely turned around.

To give you an idea of how these briefs are vindicating Father, the following are a few brief quotes from some already filed.

1. THE AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS (AACS): consists of more than 1,130 member schools from across the nation. These member schools engage in practices that are similar or identical t some of those involved in this case. Many of them accumulate funds over periods of years to carry out religious ministries.

Sometimes these funds are held in the name of a single individual, as they were in this case. Moreover, many of the reasons given by the courts below to justify treating the income from religious gifts as taxable to Rev. Moon could be applied to various AACS members -- the lack of a formal organizational structure, for example. The AACS therefore has a vital interest in the proper disposition of this important case because the decision of the courts below, if permitted to stand, has the potential of generating extremely adverse effects upon its members."

2. THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (SCLC), THE NATIONAL CONFERENCE OF BLACK MAYORS, THE NATIONAL BAR ASSOCIATION AND CONGRESSMAN MERVYN DYMALLY file their brief out of deep concern that Reverend Moon was denied equal justice because of his status as the controversial leader of an unpopular religious movement. The Amici believe that Reverend Moon's trial and conviction for tax fraud and conspiracy raise grave constitutional questions which were inadequately considered by the Appellate Court which affirmed Reverend Moon's conviction... the Appellate Court's opinion poses a particular threat to poorer churches and congregations who lack the sophistication necessary to structure their affairs in the highly formal manner demanded by the Appellate Court. Frequently, inner city and rural congregations entrust funds to their ministers intending such funds to be used for the support of the church as well as for the minister's necessary living expenses. These congregants lack the legal sophistication to utter the words to be held in trust' The Appellate Court's opinion makes it possible for the ministers who accept these funds in good faith to become subject to prosecution on the theory that the funds were their own personal income.. In sum, the jury instructions approved by the Circuit Court which upheld Reverend Moon's convictions (by a 2-1 vote) were, in effect, a roving commission for the jury to impose its own views about appropriate organization and expenditures on Reverend Moon and the Unification Church. The result is a precedent which threatens all religious groups and especially poor religious groups by openly authorizing public intrusion up- n their internal affairs. It is urgently important that this Court grant certiorari to remove this threat to religious liberty.

3. THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A., THE PRESBYTERIAN CHURCH (U.S.A.), THE AMERICAN BAPTIST CHURCHES IN THE U.S.A., THE AFRICAN METHODIST EPISCOPAL CHURCH, THE NATIONAL ASSOCIATION OF EVANGELICALS, AND THE CHRISTIAN LEGAL SOCIETY, which represent well over fifty million Americans, concluded their amicus brief in this way:

Our alarm at the injustice in this case arises from the complete disregard of Reverend Moon's First and Fifth Amendment Rights, first by the trial court and then, on appeal, by, the court below. No particular sympathy for the defendant in this case, and no agreement with his faith, is required to feel grave distress at the resulting breach of religious liberty. The government's use beim. of Reverend Moon's religion -- exploiting its unpopularity, and precluding him at key junctures from asserting defenses based on the practices and teachings of his religion -- severely threatens rights of all religious groups. Accordingly, for this and for all of the foregoing reasons, we urge this Court to grant the petition for certiorari, and decide the important questions presented by this case.

4. THE CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL RIGHTS is an organization of Catholic citizens whose primary purpose is to protect religious freedom within secular society. They submit their brief: out of concern with the impact this case has on the religious liberty of the petitioners and their followers and... with the impact this decision could have on other churches, most especially the Roman Catholic Church.

Their concern is with the unconstitutional treatment Reverend Moon has received and the potential deleterious effect the decision below could have on all churches, including the Roman Catholic Church... Like Unification Church leaders, Catholic leaders, such as bishops, often hold church property in their own name. To be sure, the Catholic Church has a highly developed body of canon law applicable to property questions. Were a court to defer to this body of canon law, a Catholic bishop would not find himself liable for taxes in factual situations similar to this case. However, the largely unlimited jury inquiry into religious purposes licensed by the decision below gives no assurance that courts would treat a Catholic bishop in such a deferential manner. The possibility of such adverse effect indicates that the issues involved in this matter have implications extending far beyond the involved parties and require resolution by this Court.

5. THE FREEMEN INSTITUTE, a membership organization dedicated to the goals of individual freedom, especially religious freedom, wrote the following:

Reverend Moon's central position in the theology of the Unification Church, not just as its founder, prophet-and worldwide leader, but also as the instrument for the accomplishment of its divine mission is so widely known as to be a matter of common knowledge. Why else would members of the Church be called "Moonies"? This key fact was not disputed by the government or the trial court. It had crucial relevance to the core issue in the case -- the beneficial ownership of the assets in question. Nevertheless, it was excluded from consideration by the trial court in acquiescence to the government's contention that Reverend Moon's religion and his relation to it had nothing to do with the case.

As the prosecutor explained in post- trial proceedings: "...[W]e undertook to try Reverend Moon...like any ordinary person charged with tax fraud"; "we have dealt with [him]... just as the government deals with any high ranking business executive." The government in its closing argument stated: "This case is not about tax exemption of churches. It is about personal income tax to an individual who happens to be related to a church."

Any high ranking business executive indeed! HAPPENS to be related to a church indeed! Just as Luther, in administering the religious affairs of his congregants, was like ANY high ranking business executive who HAPPENED to be related to the Lutheran Church. Like Baha'u'llah happened to be a Baha'i; like Mary Baker Eddy happened to be a Christian Scientist; like Brigham Young happened to be a Mormon; like Menachem Schneerson happens to be a Lubavitcher.

The error permeating the government's case was compounded by the refusal of the trial judge to instruct the jury on Reverend Moon's unique role as a religious leader who is viewed by his followers as the embodiment of the faith -- an instruction that was amply supported by the only evidence on point.

Presiding Circuit Judge Oakes recognized this point in his dissent "[T]he taxpayer here was the founder and leader of a worldwide movement which, regardless of what the observer may think of its views or even its motives, is nevertheless on its face a religious one, the members of which regard the taxpayer as the embodiment of their faith."

6. THE CENTER FOR JUDICIAL STUDIES, devoted to judicial and legal reform stated:

The decision of the Court of Appeals in this case would confer on the courts a dangerous power to define the content of religious belief even contrary to the good faith profession of the believers as to what they themselves believe. The Center for Judicial Studies maintains that the religious liberty protected by the First Amendment will be seriously diminished if the principle is established that courts can tell sincere believers what they believe and can define authentically religious activities as secular so as to deprive them of the protections of the Religion Clauses of the First Amendment...

The significance of this case is that the courts convicted Reverend Moon and affirmed that conviction by disregarding one of the most important protections afforded by the First Amendment against governmental domination of religious groups. It is essential that this case be heard by the Supreme Court and that the erroneous principles employed by the Court of Appeals be rejected.

7. THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (THE MORMON CHURCH):

The religious dogma of the defendants and their church was crucial in determining whether there were funds which could be taxed or which could be the subject of fraud. Under the lower court's decision, religions are left unprotected from both exercise and establishment invasions. In this case the jury adjudged both the nature and the propriety of a religion's beliefs and activities, not just sincerity. The invasions against religion were not blunt or highly visible in the instant case; they were subtle, making the precedent more pernicious and so imprecise as to multiply the case's impact...

In order to uphold the constitutional guarantees of religious liberty assured by the First Amendment, in order to verify that proper principles have been applied, in order to prevent impingement on religion... the L.D.S. Church respectfully requests that this Court grant certiorari to review the religious issues here raised.

8. THE AMERICAN CIVIL LIBERTIES UNION AND THE NEW YORK CIVIL LIBERTIES UNION are concerned with the protection of fundamental liberties guaranteed by the Constitution:

The right of a pervasively unpopular defendant to a fair and impartial finder of fact in a criminal trial which turns on highly subjective considerations is at the core of procedural due process of law-....When, however, a defendant has reason to fear that his pervasive unpopularity may taint the deliberations of a jury selected in compliance with traditional Sixth Amendment standards, amici believe that the Due Process Clause of the Fifth Amendment guarantees such a defendant the right to be tried before a judge, especially when the judge believes that a bench trial would be "fairer" to the, highly controversial defendant... If anything, the government's insistence on a jury when the defendant and the judge believed that a bench trial would be fairer simply reinforces public suspicion that Rev. Moon was the target of religious persecution, to say nothing of inflicting a serious penalty on Rev. Moon for having dared to criticize the prosecutor.

9. UNITED STATES SENATOR ORRIN G. HATCH, CHAIRMAN OF THE SENATE SUBCOMMITTEE ON THE CONSTITUTION:

The Subcommittee is vitally interested in all activities in which constitutional rights are defined and interpreted. Senator Hatch is particularly concerned about this case because it represents, in his view, a troubling and unwarranted exercise of judicial interference by the courts below with fundamental religious freedoms...

The decision below, if permitted to stand, seriously threatens the internal workings of every church in the country. The governmental intrusion into the activities of the Unification Church allowed below is repugnant to the very core of our democratic way of life. By investigating the tax affairs of Reverend Moon and the Unification Church, the government chose perhaps the easiest available method, through the guise of legitimate governmental activity, to interject itself into the affairs of an unpopular church and leader. Whatever the merit of such an investigation, the government and courts below were nonetheless obligated at trial to fully respect and safeguard Reverend Moon's and the Unification Church's constitutional rights..

The religious freedoms guaranteed by the Constitution were never intended to bend or depend on the relative popularity of the church involved. Indeed, the trials of unpopular persons, such as the trial below, demand more, not less, care to assure the unquestioned protection of religious rights. If religious freedoms can be so callously disregarded in the case of an unpopular person, as they were in the case below, the same can happen in any other trial involving the claims of churches. No church is safe if lay juries are permitted, as was the jury in this case, to substitute their views for those of a church regarding the church's practices, beliefs and procedures. The next case may involve another generally unpopular leader, such as Reverend Moon, or it may be someone from one of the more "established" religions. But whoever the leader and whatever the church, another case following or expanding on the so-called exception created by the Court of Appeals below is sure to follow. Once the door is open, the possibilities of governmental intrusion into the heretofore protected area of church related fundraising, accounting or other activities are many and dangerous. The government, over time, may be found dictating the manner in which churches handle internal funding, how they must invest their funds and how their bookkeeping records must be established. These serious ramifications cannot be permitted to occur. The decision below is accordingly viewed with concern and alarm by a wide- ranging group of churches, political organizations and other institutions throughout America who join this Amicus in urging the united States Supreme Court to grant petitioner's petition and review and reverse the decision below.

10. THE STATES OF HAWAII, OREGON AND RHODE ISLAND filed an amicus brief in support of Father's petition to the Supreme Court because the decision by the Court of Appeals creates intolerable confusion in the area of charitable trusts -- an area of law which the Attorneys General of then states had always understood to be clear and well-settled.

In their words:

The amici states urge that certiorari be granted in this case because of the serious implications of the Second Circuit's decision with respect to the enforcement of charitable trusts. The states are charged with assuring the probity of officials and individuals entrusted with the possession of funds belonging to others, the preservation of the funds themselves and the faithful discharge of the trusts upon which they are given. Chief among the states' responsibilities in this area is the oversight and enforcement of charitable trusts. It is essential that the states be able to enforce accountability upon trustees... The trust concept is vital to a significant segment of social and legal intercourse, and the integrity of that concept is equally vital to the enforcement tools which the states have provided to preserve and maintain it. The decision of the Second Circuit in United States v. Moon casts doubt upon the integrity of the trust concept itself.

In particular, these states express their concern that the Court of Appeals did not give the necessary consideration to the intent of the church members who donated the funds placed in Father's name. In the past, this has always been considered the most important factor in deciding whether or not a trust exists. Instead, the courts in Father's case focused on how the money was used. This was unconstitutional and improper because the courts have no business telling a church what is a proper use of funds.

In its concluding statement, this very significant brief asserts that if this decision is followed elsewhere, it would create severe problems in the proper enforcement of trusts. In actual fact, the Court of Appeals decision makes it much easier for those who are really the ones who do commit fraud and abuse religious tax exemptions. Therefore, innocent church goers could now be much more easily abused and they would have much more difficulty in making sure that church money is not misused or embezzled. As the Attorneys General stated: Under this rule, the beneficiaries of all trusts would be faced with similar difficulties in attempting to enforce accountability against fiduciaries. The potential for mischief is virtually limitless, for the rule is akin to saying that a thief, by virtue of his conversion, acquires full and defensible title to the subject of his theft. Little imagination is needed to appreciate the chaos to which such a rule could lead.

There are at least five or six additional amicus briefs that will be filed by March 26. Unless the government seeks an additional thirty day extension this is the final date for the government and all amicus groups are to submit their briefs. As soon as all the briefs are submitted, the Supreme Court will begin to consider Father's petition. We expect the Court will make a decision four to eight weeks from then, but the Court does not have any deadline. This means that, if no further extension is sought, the Supreme Court will probably announce its decision sometime in May.

Information is being sent on a regular basis to church leaders. Please contact them or the Legal Department, 4 West 43rd Street, New York, NY 10036, for further updates or for copies of any of the briefs or press clippings. Above all, have hope and confidence that Father is truly being vindicated through the Pentecost since Heung Jin Nim's ascension, and also through all the prayers and hard work of our entire movement.