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of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government." Marshall's rejection of such argument is clear. He says, "But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not." Applying this principle to our own case, we must admit that although a particular tax levied on a religious ministry may not in fact act to destroy that ministry is not argument to deny the tax power on the principle. A document quoted by Mr. Justice Douglas in his dissenting opinion, Waltz vs. Tax Commission, 397 US 664, at 721, reveals the attitude of our founding fathers on such issues. Some Virginians, objecting to a bill to tax the general public to support Christian teachers, said,
It is proper to take alarm at the first experiment on our liberties. We
Have we forgotten this lesson? Many who have learned very little of America's Christian heritage may not have learned this lesson at all. Statist-humanist education has attempted to replace the principles of religious liberty and limited government with the old Roman concepts of religious toleration and the omnipotent state. So far, however, the court has continued to favor religious freedom from state control. In Waltz vs. Tax Commission, for example, the court upheld the State of New York's exemption of religious ministries from the property tax. In the course of Chief Justice Burger's opinion of the Court, he states:
The general principle deducible from the First Amendment and all that has
Governments have not always been tolerant of religious activity, and hos-
We must also be sure that the end result--the effect--is not an excessive
Granting tax exemptions to churches necessarily operates to afford an in-
Our constitutional argument can now be easily summarized. The American equivalent to Caesar is the Constitution of the United States. All laws must be consistent with that constitution. The constitution commands federal officials that they cannot
constitutionally tax or otherwise exercise control over religious affairs. Notice that the First Amendment does not specify a church. In fact, if government were to restrict religious exercise to that performed by defined or approved churches, that would itself be a violation of the establishment clause. Should the government, for example, state that to truly enjoy free exercise in a Christian school, you must organize it in a certain approved way, government would be involved in establishing religion. Once the federal government says that only churches are legitimate institutions from which free exercise of religion may be made, they can define away any objectionable religious activity that doesn't meet the test of popular public policy. This is precisely what the establishment clause was written to prevent. Since the education of our children is a religious matter, carried out by a religious ministry, it is unlawful for civil government to entangle itself in the affairs of that ministry through the tax power or any other means. Therefore, in our particular case, both the Social Security Tax Act and the Federal Unemployment Tax Act, if drawn constitutionally, must exempt any legitimate religious ministry, to include conventionally organized churches and religious educational ministries such as our own.
The Uneasy Case
moncy to Reverend Moon in support of RELIGIOUS LIBERTY
the church's new missionary crusade to America. Reverend Moon deposited these funds in an account in his name in the Chase Manhattan Bank. His accountants duly reported funds withdrawn by him for personal living expenses as taxable income to him. But the interest earned
on the money in the bank-totaling JOHN MCCLAUGHRY
$106,500 over three years-was not reported as taxable income.
The crux of the matter is whether D ESPITE THE protests of the Rea. ing the Moon prosecution strongly sug- Reverend Moon accepted the contribu
gan Administration that it sup- gest a government vendetta against a tions as trustee for the church and used ports freedom of religion against gov- church that politically powerful people them for traditional religious purposes. If crament intrusion, the Internal Revenue find repugnant to their own brand of so, the interest was not taxable. If not Service is once again launching an as- religion. Roger Williams, trudging south --if Reverend Moon simply pocketed sault on the independence of the nation's from Massachusetts Bay in 1635, would the funds for his personal use then the churches. have understood.
interest was indeed taxable, and RevIn the 1983 Bob Jones University and
erend Moon committed tax fraud in failGoldsboro Christian Schools cases, the
Moon's Pilgrimage ing to report it. Supreme Court upheld the IRS posi
Before examining this question further, tion by decreeing that church-sponsored Sun Myung Moon was born in 1920, it is worth noting the circumstances surschools could not enjoy the benefits of in a rural part of what is now North rounding the prosecution of Reverend tax exemption and deductibility if they Korea. His family converted to Presby Moon, seven years after his failure to practiced any form of racial discrimina- terianism when he was ten years old. report the interest income. (In 1976 the tion. These cases dealt with schools, not When he was 16, he says, Jesus Christ Church incorporated in order to avoid with churches per se. Now, however, appeared to him on Easter morning, tell- further problems.) there is litigation under way designed to ing him to go forth and complete Jesus's There was in 1981 considerable public inject the government into the internal mission of reconciling humanity to God's resentment against the Moonies. The Naworkings of bona-fide churches.
word and His love. At the end of World tional Council of Churches refused to The case, brought by the Internal Rev. War II, Moon, at age 26, founded what accept the Unification Church's doctrines enue Service in 1981, is that of Rev. became the Unification Church.
as compatible with traditional Christianerend Sun Myung Moon, the Korean He went to Pyongyang. then under ity. There was widespread disapproval of founder of the controversial Holy Spirit Soviet occupation and now the capital the Church's fundraising methods, which Association for the Unification of World of Communist North Korea. For his included street solicitation. And there Christianity, commonly known as the preaching the Communists had the usual were frequent uproars over young people Unification Church, or the "Moonies," respect. They threw him into a forced who had allegedly been seduced into The IRS charged Reverend Moon with labor camp and tortured him to the Moonichood by various brainwashing tax fraud. The District Court of New point of death. American forces arrived techniques. York convicted him, and he was sen- at Hungnam in October 1950, and freed in this atmosphere of public hostility tenced to pay a $25,000 fine and serve the young preacher from captivity. He the government brought its case for tax 18 months in jail. A three-judge panel made his way to Pusan, South Korea, fraud. Reverend Moon, who had volunof the Second Circuit U.S. Court of six hundred miles away, pushing a bi- tarily returned from Korea to New York Appeals recently affirmed the conviction cycle carrying a comrade with a broken to stand trial, stated publicly his belief on appeal, by a 2 to 1 vote. (Reverend leg. From humble beginnings there the that the prosecution was motivated by Moon's lawyers have appealed for an en Unification Church took hold in Korea racial and religious factors. His lawyers banc rehearing before the Second Cir. and Japan. By 1971 Reverend Moon, asked for a trial without a jury, fear
cuit. If that is denied, they will seek regarded by his followers as the embod- ing that no objective jury could be em· review by the Supreme Court.)
iment of the faith and a new world paneled. Surprisingly, the government, It is unfortunate that the defendant in prophet, was ready to go to America. which usually prefers court trials to jury this case is such a controversial figure. Now we come to the matter that led trials, demanded a jury trial. Judge Goetfor the public's feelings about the Moon- to Reverend Moon's prosecution. It is r tel accepted the government's position. ies tend to override recognition of the customary for new religions-and, indeed. At first the case seemed simple. It was key issue involved in the case. That key many well established religions--to view clear that Reverend Moon had received issue has nothing to do with Reverend their founders or clergymen as both spir- the funds, put them into the bank, earned Moon himself, or the theology of his itual and temporal trustees for the faithchurch, or its fundraising and recruit- ful. Adherents of the faith make their ment practices. It is, simply, the extent to contributions to the leader of the church, Mr. McClaughry was Senior Policy Adviwhich a bona fide religious body can be who receives the assets in trust for the sor in the White House during the first penalized for refusing to adopt internal support and propagation of the faith. year of the Reagan Administration. He practices acceptable to the government. In March 1972 Japanese church mem- has no connection with the Unification In addition, the circumstances surround- bers contributed a substantial amount of Church.
December 23, 1983 / NATIONAL REVIEW
interest on them, and ignored the interest "troubling issues of religious persecution F urthermore--and here is the threat to on his income tax form. But Judge Goet- and abridgement of free speech" in the all organized religions--the government lel soon recognized that the real question Moon case.
is here assuming the power to penewas an intricate one, centering on the That those issues are troubling to many trale into church affairs. Even a church clusive nature of an implied trust rela- far beyond the Unication Church is as established as the Roman Catholic tionship. At the same time, it became fact reflected by the remarkably broad Church observes a doctrine whereby the apparent that the jury was out of its coalition of religious organizations join. bishop is the personal manager of church depth. Even the judge himself observed, ing in a friend of the court brief on funds. Under the doctrinc advanced by from the bench, that in the effort to Reverend Moon's behalf: the National the government in its pursuit of Rever. secure a relatively unbiased jury it had Council of Churches, the United Pres- end Moon, all decisions of a bishop or been necessary to empanel jurors “who byterian Church, the American Baptist other church official would be made undon't know much, because they are ob Churches, the AME Church, the Unitar- der peril of prosecution, if the governviously the persons who start off with ian Universalist Association, and the Na- ment was somehow displeased with the the least bias." These were, he said, "the tional Black Catholic Clergy Caucus. result. less educated and less intelligent people." In the view of these mainline church To this jury the judge then presented the organizations, "when someone's religious
Choice of Victims complicated and subtle question of the beliefs and practices become relevant to implied trust relationship
refuting the charges against him, treating Onc may concede that the governThe technicalities of this question are him as though religion had nothing to ment was clever in its choice of vicbetter left to the law journals, but the do with the matter is the very essence of tims. Reverend Moon is not a popular basic issue was this: If the donors in- unfairness and discrimination. ... Up figure in the American religious world. tended to give funds to the church for holding the conviction in this case," the He is non-white, 1 foreigner who religious purposes, thereby implicitly cre- church groups continued, "would estab speaks only halting English. His theolo ating a charitable trust, and if the funds lish the dangerous principle that courts sy is highly unorthodox. In addition, he were employed by the trustee (Reverend may simply disregard the religious rea. is outspokenly anti-Communist and sees Moon) for such purposes, then Reverend sons for, and the religious meanings of himself as a rallying force for a great Moon was not guilty of tar fraud in someone's conduct.
American struggle to roll back the Comfailing to report the interest on his per "The principle that religious notions munist tide in the world. Then there are sonal tax return.
and explanations must at least be fully the allegations concerning the Moonies'
uken into account.. critical to fundraising and recruitment practices. N Anatomy of a Prosecution followers of all faiths, not simply those the government wanted to establisha
faiths that are new or small or in dis- new doctrine of government supervision Throughout its prosecution, the gov- favor," said the brief. “From the tax- of churches, it could hardly have chosen ernment insisted on the irrelevance of exempt status of a church's parking lot, a better target to make its case. Reverend Moon's role as the founder of to the validity of an unincorporated But the case of Reverend Moon is not his church, terming him instead "an or church association's assertion of power just his own problem. It should be a dinary high-ranking businessman." When to direct the actions of a church corpo matter of grave concern for all those the defense sought to introduce evidence ration, little of what even modern-day who defend freedom of religion against that Reverend Moon was merely trus- mainstream churches routinely do would unwarranted government intrusion. For if lee for a religious body, the government survive intact if squeezed through a reli- Reverend Moon goes to jail this time objected. Even worse, government coun- gion-extracting filter.
not in Communist North Korea, but in sel openly intimidated the defense by "Upholding the conviction in this the United States of America, the great promising to respond to a defense built case," the brief concluded, "would also bastion of religious liberty-something of around Reverend Moon's religious role establish the proposition that judges and vital importance to all American relo by introducing "negative things about juries may simply override a religion's gions goes with him. the church“— whether or not related to own decisions about how to organize it. At this stage, having won on appeal, the financial arrangement in question. sell, how to allocate responsibility over the government's lawyers can be expected (The Christian Legal Society, represent church matters, and how to expend 10 resist any further review of the case ing the Christian evangelical movement, church resources. ... The judgment in in a higher court. But in view of the eventually filed an appellate brief argu- this case does not simply run rough- momentous issues involved which the ing that this trial behavior by the gov. shod over religion: It positively penalizes appeals court recognized even as its maernment "unconstitutionally infringed on religious fervor and spiritual expression." jority ruled against the defendant-the the defendant's free speech, (and) may At the heart of the government's posi- Reagan Administration should take the also have a chilling effect on other indi- tion seems to be the idea that there is unusual step of supporting Reverend viduals freely discussing and propagating nothing special about religion. If you Moon's petition for review at the aptheir religions.")
wish to start a church, or contribute to peals-court level and, if that fails, his The jury-improperly charged, accord- church, you must follow practices dicpetition for review by the Supreme ing 10 the defense-lound Reverend lated by the government. Those who do Court. Such recognition by the AdminMoon guilty. His appeal was rejected, not will be prosecuted vigorously, and istration that this is more than a simple and at this writing his lawyers have the more unorthodox the religious beliefs case of white-collar crime would vastly asked for rehearing before the entire involved, the more ammunition the gov- increase the chai appeals court to review what even theernment will bring to bear to swaye sideration of the religious-liberty issue by majority of the appeals panel termed the jury against your cause.
the highest court in the land.
(c) 1983 by National Review, Inc., 150 East 35th Street, New York, NY 10016. Reprinted with permission.