ESPITE THE protests of the Rea

Dan Administration that it sup

ports freedom of religion against government intrusion, the Internal Revenue Service is once again launching an assault on the independence of the nation's churches.

In the 1983 Bob Jones University and Goldsboro Christian Schools cases, the Supreme Court upheld the IRS position by decreeing that church-sponsored schools could not enjoy the benefits of tax exemption and deductibility if they practiced any form of racial discrimination. These cases dealt with schools, not with churches per se. Now, however, there is litigation under way designed to inject the government into the internal workings of bona-fide churches.

The case, brought by the Internal Revenue Service in 1981, is that of Reverend Sun Myung Moon, the Korean

founder of the controversial Holy Spirit Association for the Unification of World Christianity, commonly known as the Unification Church, or the "Moonies." The IRS charged Reverend Moon with tax fraud. The District Court of New York convicted him, and he was sentenced to pay a $25,000 fine and serve 18 months in jail. A three-judge panel of the Second Circuit U.S. Court of Appeals recently affirmed the conviction on appeal, by a 2 to vote. (Reverend Moon's lawyers have appealed for an en banc rehearing before the Second Circuit. If that is denied, they will seek review by the Supreme Court.)

It is unfortunate that the defendant in this case is such a controversial figure, for the public's feelings about the Moonies tend to override recognition of the key issue involved in the case. That key issue has nothing to do with Reverend Moon himself, or the theology of his church, or its fundraising and recruitment practices. It is, simply, the extent to which a bona-fide religious body can be penalized for refusing to adopt internal practices acceptable to the government. In addition, the circumstances surround

ing the Moon prosecution strongly suggest a government vendetta against a church that politically powerful people find repugnant to their own brand of religion. Roger Williams, trudging south from Massachusetts Bay in 1635, would have understood.

money to Reverend Moon in support of 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 His accountants duly reported funds withdrawn by him for personal living expenses as taxable income to him.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 $106,500 over three years-was not reported as taxable income.

The crux of the matter is whether Reverend Moon accepted the contributions as trustee for the church and used them for traditional religious purposes. If so, the interest was not taxable. If not --if Reverend Moon simply pocketed the funds for his personal use then the interest was indeed taxable, and Reverend Moon committed tax fraud in fail

Sun Myung Moon was born in 1920. in a rural part of what is now North Korea. His family converted to Presbyterianism when he was ten years old. When he was 16, he says, Jesus Christ appeared to him on Easter morning, telling him to go forth and complete Jesus's mission of reconciling humanity to God's word and His love. At the end of World War II, Moon, at age 26, founded what became the Unification Church.

He went to Pyongyang, then under Soviet occupation and now the capital of Communist North Korea. For his preaching the Communists had the usual respect. They threw him into a forced labor camp and tortured him to the point of death. American forces arrived at Hungnam in October 1950, and freed the young preacher from captivity. He made his way to Pusan, South Korea, six hundred miles away, pushing a bicycle carrying a comrade with a broken leg. From humble beginnings there the Unification Church took hold in Korea and Japan. By 1971 Reverend Moon, regarded by his followers as the embodiment of the faith and a new world prophet, was ready to go to America.

Now we come to the matter that led to Reverend Moon's prosecution. It is customary for new religions--and, indeed, many well established religions-to view their founders or clergymen as both spiritual and temporal trustees for the faithful. Adherents of the faith make their contributions to the leader of the church, who receives the assets in trust for the support and propagation of the faith.

In March 1972 Japanese church members contributed a substantial amount of

Before examining this question further, it is worth noting the circumstances surrounding the prosecution of Reverend Moon, seven years after his failure to report the interest income. (In 1976 the Church incorporated in order to avoid further problems.)

There was in 1981 considerable public resentment against the Moonies. The National Council of Churches refused to accept the Unification Church's doctrines as compatible with traditional Christianity. There was widespread disapproval of the Church's fundraising methods, which included street solicitation. And there were frequent uproars over young people who had allegedly been seduced into Mooniehood by various brainwashing techniques.

In this atmosphere of public hostility the government brought its case for tax fraud. Reverend Moon, who had voluntarily returned from Korea to New York to stand trial, stated publicly his belief that the prosecution was motivated by racial and religious factors. His lawyers asked for a trial without a jury, fearing that no objective jury could be empaneled. Surprisingly, the government, which usually prefers court trials to jury trials, demanded a jury trial. Judge Goettel accepted the government's position.

At first the case seemed simple. It was clear that Reverend Moon had received the funds, put them into the bank, earned

Mr. McClaughry was Senior Policy Advisor in the White House during the first year of the Reagan Administration. He has no connection with the Unification Church.

interest on them, and ignored the interest on his income-tax form. But Judge Goettel soon recognized that the real question was an intricate one, centering on the elusive nature of an implied trust relationship. At the same time, it became apparent that the jury was out of its depth. Even the judge himself observed, from the bench, that in the effort to secure a relatively unbiased jury it had been necessary to empanel jurors "who don't know much, because they are obviously the persons who start off with the least bias." These were, he said, "the less educated and less intelligent people." To this jury the judge then presented the complicated and subtle question of the implied trust relationship.

The technicalities of this question are better left to the law journals, but the basic issue was this: If the donors intended to give funds to the church for religious purposes, thereby implicitly creating a charitable trust, and if the funds were employed by the trustee (Reverend Moon) for such purposes, then Reverend Moon was not guilty of tax fraud in failing to report the interest on his personal tax return.

Anatomy of a Prosecution

Throughout its prosecution, the government insisted on the irrelevance of Reverend Moon's role' as the founder of his church, terming him instead "an ordinary high-ranking businessman." When the defense sought to introduce evidence that Reverend Moon was merely a trustee for a religious body, the government objected. Even worse, government counsel openly intimidated the defense by promising to respond to a defense built around Reverend Moon's religious role by introducing "negative things about the church"-whether or not related to the financial arrangement in question. (The Christian Legal Society, representing the Christian evangelical movement, eventually filed an appellate brief arguing that this trial behavior by the government "unconstitutionally infringed on the defendant's free speech, [and] may also have a chilling effect on other individuals freely discussing and propagating their religions.")

The jury-improperly charged, according to the defense-found Reverend Moon guilty. His appeal was rejected, and at this writing his lawyers have asked for a rehearing before the entire appeals court to review what even the majority of the appeals panel termed the

"troubling issues of religious persecution and abridgement of free speech" in the Moon case.

That those issues are troubling to many far beyond the Unification Church is a fact reflected by the remarkably broad coalition of religious organizations joining in a friend of the court brief on Reverend Moon's behalf: the National Council of Churches, the United Presbyterian Church, the American Baptist Churches, the AME Church, the Unitarian Universalist Association, and the National Black Catholic Clergy Caucus.

In the view of these mainline church organizations, "when someone's religious beliefs and practices become relevant to refuting the charges against him, treating him as though religion had nothing to do with the matter is the very essence of unfairness and discrimination... holding the conviction in this case," the church groups continued, "would establish the dangerous principle that courts may simply disregard the religious reasons for, and the religious meanings of, someone's conduct.

Up

"The principle that religious notions and explanations must at least be fully taken into account . . . is critical to followers of all faiths, not simply those faiths that are new or small or in disfavor," said the brief. "From the taxexempt status of a church's parking lot, to the validity of an unincorporated church association's assertion of power to direct the actions of a church corporation, little of what even modern-day mainstream churches routinely do would survive intact if squeezed through a religion-extracting filter.

"Upholding the conviction in this case," the brief concluded, “would also establish the proposition that judges and juries may simply override a religion's own decisions about how to organize it. self, how to allocate responsibility over church matters, and how to expend church resources. ... The judgment in this case does not simply run roughshod over religion: It positively penalizes religious fervor and spiritual expression."

At the heart of the government's position seems to be the idea that there is nothing special about religion. If you wish to start a church, or contribute to a church, you must follow practices dictated by the government. Those who do not will be prosecuted vigorously, and the more unorthodox the religious beliefs involved, the more ammunition the government will bring to bear to sway a jury against your cause.

Furthermore-and here is the threat to all organized religions-the government is here assuming the power to penetrate into church affairs. Even a church as established as the Roman Catholic Church observes a doctrine whereby the bishop is the personal manager of church funds. Under the doctrine advanced by the government in its pursuit of Reverend Moon, all decisions of a bishop or other church official would be made under peril of prosecution, if the government was somehow displeased with the result.

Choice of Victims

One may concede that the government was clever in its choice of victims. Reverend Moon is not a popular figure in the American religious world. He is a non-white, a foreigner who speaks only halting English. His theology is highly unorthodox. In addition, he is outspokenly anti-Communist and sees himself as a rallying force for a great American struggle to roll back the Communist tide in the world. Then there are the allegations concerning the Moonies' fundraising and recruitment practices. N the government wanted to establish a new doctrine of government supervision of churches, it could hardly have chosen a better target to make its case.

But the case of Reverend Moon is not just his own problem. It should be a matter of grave concern for all those who defend freedom of religion against unwarranted government intrusion. For if Reverend Moon goes to jail-this time not in Communist North Korea, but in the United States of America, the great bastion of religious liberty-something of vital importance to all American religions goes with him.

At this stage, having won un appeal, the government's lawyers can be expected to resist any further review of the case in a higher court. But in view of the momentous issues involved-which the appeals court recognized even as its majority ruled against the defendant-the Reagan Administration should take the unusual step of supporting Reverend Moon's petition for review at the appeals-court level and, if that fails, his petition for review by the Supreme Court. Such recognition by the Administration that this is more than a simple case of white-collar crime would vastly increase the chances of a definitive consideration of the religious-liberty issue by the highest court in the land.

interest on them, and ignored the interest

on his income-tax form. But Judge Goettel soon recognized that the real question was an intricate one, centering on the elusive nature of an implied trust relationship. At the same time, it became apparent that the jury was out of its depth. Even the judge himself observed, from the bench, that in the effort to secure a relatively unbiased jury it had been necessary to empanel jurors "who don't know much, because they are obviously the persons who start off with the least bias." These were, he said, "the less educated and less intelligent people." To this jury the judge then presented the complicated and subtle question of the implied trust relationship.

The technicalities of this question are better left to the law journals, but the basic issue was this: If the donors intended to give funds to the church for religious purposes, thereby implicitly creating a charitable trust, and if the funds were employed by the trustee (Reverend Moon) for such purposes, then Reverend Moon was not guilty of tax fraud in failing to report the interest on his personal tax return.

"troubling issues of religious persecution and abridgement of free speech" in the Moon case.

That those issues are troubling to many far beyond the Unification Church is a fact reflected by the remarkably broad coalition of religious organizations joining in a friend of the court brief on Reverend Moon's behalf: the National Council of Churches, the United Presbyterian Church, the American Baptist Churches, the AME Church, the Unitarian Universalist Association, and the National Black Catholic Clergy Caucus.

In the view of these mainline church organizations, "when someone's religious beliefs and practices become relevant to refuting the charges against him, treating him as though religion had nothing to do with the matter is the very essence of unfairness and discrimination.... Upholding the conviction in this case," the church groups continued, "would establish the dangerous principle that courts may simply disregard the religious reasons for, and the religious meanings of, someone's conduct.

"The principle that religious notions and explanations must at least be fully taken into account . . . is critical to Anatomy of a Prosecution followers of all faiths, not simply those

Throughout its prosecution, the government insisted on the irrelevance of Reverend Moon's role' as the founder of his church, terming him instead "an ordinary high-ranking businessman." When the defense sought to introduce evidence that Reverend Moon was merely a trus tee for a religious body, the government objected. Even worse, government counsel openly intimidated the defense by promising to respond to a defense built around Reverend Moon's religious role by introducing "negative things about the church"-whether or not related to the financial arrangement in question. (The Christian Legal Society, representing the Christian evangelical movement, eventually filed an appellate brief arguing that this trial behavior by the government "unconstitutionally infringed on the defendant's free speech, [and] may also have a chilling effect on other individuals freely discussing and propagating their religions.")

The jury-improperly charged, according to the defense-found Reverend Moon guilty. His appeal was rejected, and at this writing his lawyers have asked for a rehearing before the entire appeals court to review what even the majority of the appeals panel termed the

faiths that are new or small or in disfavor," said the brief. "From the taxexempt status of a church's parking lot, to the validity of an unincorporated church association's assertion of power to direct the actions of a church corporation, little of what even modern-day mainstream churches routinely do would survive intact if squeezed through a religion-extracting filter.

"Upholding the conviction in this case," the brief concluded, "would also establish the proposition that judges and juries may simply override a religion's own decisions about how to organize itself, how to allocate responsibility over church matters, and how to expend church resources. . . . The judgment in this case does not simply run roughshod over religion: It positively penalizes religious fervor and spiritual expression."

At the heart of the government's position seems to be the idea that there is nothing special about religion. If you wish to start a church, or contribute to a church, you must follow practices dictated by the government. Those who do not will be prosecuted vigorously, and the more unorthodox the religious beliefs involved, the more ammunition the government will bring to bear to sway a jury against your cause.

Furthermore-and here is the threat to all organized religions-the government is here assuming the power to penetrate into church affairs. Even a church as established as the Roman Catholic Church observes a doctrine whereby the bishop is the personal manager of church funds. Under the doctrine advanced by the government in its pursuit of Reverend Moon, all decisions of a bishop or other church official would be made under peril of prosecution, if the government was somehow displeased with the result.

Choice of Victims

One may concede that the government was clever in its choice of victims. Reverend Moon is not a popular figure in the American religious world. He is a non-white, a foreigner who speaks only halting English. His theology is highly unorthodox. In addition, he is outspokenly anti-Communist and sees himself as a rallying force for a great American struggle to roll back the Communist tide in the world. Then there are the allegations concerning the Moonies' fundraising and recruitment practices. If the government wanted to establish a new doctrine of government supervision of churches, it could hardly have chosen a better target to make its case.

But the case of Reverend Moon is not just his own problem. It should be a matter of grave concern for all those who defend freedom of religion against unwarranted government intrusion. For if Reverend Moon goes to jail-this time not in Communist North Korea, but in the United States of America, the great bastion of religious liberty-something of vital importance to all American religions goes with him.

At this stage, having won on appeal, the government's lawyers can be expected to resist any further review of the case in a higher court. But in view of the momentous issues involved-which the appeals court recognized even as its majority ruled against the defendant-the Reagan Administration should take the unusual step of supporting Reverend Moon's petition for review at the ap peals-court level and, if that fails, his petition for review by the Supreme Court. Such recognition by the Administration that this is more than a simple case of white-collar crime would vastly increase the chances of a definitive consideration of the religious-liberty issue by the highest court in the land. 0

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