Church and State

By Richard N. Ostling

Federal judges are not known for their patience with uncooperative witnesses and foot-dragging litigants. But never before, to anyone's recollection, has a member of the federal bench cited the entire Roman Catholic hierarchy for contempt of court. Last week in New York City, however, Federal Judge Robert L. Carter socked the Catholic bishops of the U.S. with an eye-popping fine of $100,000 a day until they comply with a court order. The bishops' sin: refusing the judge's instructions to give suing pro-choicers internal church documents on the church's antiabortion campaign. The critical underlying issue that has dragged the bishops into court: whether the Catholic hierarchy crossed the boundary between church and state in politicking against abortion.

Carter's punishment is but the latest development in a 5 1/2-year litigation that could become a major constitutional test case on the limits of mixing religion and politics. Protestant and Jewish groups that disagree with Catholicism on abortion are deeply concerned about the case's religious- liberty implications. The suit by a group called Abortion Rights Mobilization, joined by 20 other pro-choice groups and individuals, is aimed at stripping the Catholic Church of its status as a tax-exempt religious organization. The suit is based upon section 501(c)(3) of the tax code, which states that an exempt organization cannot "participate in, or intervene in . . . any political campaign on behalf of any candidate for public office."

For the past ten years, the Catholic Church "has engaged in a systematic effort to support or oppose candidates according to their position on the abortion question, and the IRS has done nothing to enforce the tax code against the Catholic Church," charges ARM Lawyer Marshall Beil. Among the transgressions cited by ARM: a 1980 letter read from 410 pulpits in Boston implicitly urging congregations not to elect Barney Frank a Congressman; a 1980 editorial in a Catholic newspaper in San Antonio (headline: TO THE IRS --NUTS!!!) that praised Ronald Reagan for his antiabortion stand; and John Cardinal O'Connor's public disputes with Democratic Vice-Presidential Candidate Geraldine Ferraro over her stand on abortion. Beil contends that many such statements stem from a 1975 church master plan for pro-life activities; the church has refused to turn over background documents on this to the court.

Judge Carter has directed the 350 bishops to provide other internal documents on their national and local anti-abortion activities and possible funding, as well as their dealings with political candidates and with the IRS. Impatient with the church's unwillingness to comply, the judge charged that the Catholic groups had "willfully misled" the plaintiffs and had "made a travesty of the court process." Nonetheless, at week's end he agreed to delay the huge fines, giving church lawyers until May 16 to appeal the contempt citation.

Churches "have a right--as much as you and I do--to discuss any issue," acknowledges ARM President Lawrence Lader. In fact, the tax code specifically allows exempt organizations some leeway for lobbying. But, says Lader, exempt groups cannot "support or attack political candidates." He notes that the IRS removed the exemption of the Christian Century magazine for three years because it endorsed Lyndon Johnson's election in 1964. Beil hypothesizes that political work by Jerry Falwell's Fundamentalist supporters could be another target of scrutiny, "but at the moment it's enough to fight the Catholic Church . . . One step at a time."

With reporting by Cathy Booth/New York