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Americans United for Separation of Church and State v. Reagan

March 21, 1986

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ROBERT L. MADDOX, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; AMERICAN BAPTIST CHURCHES IN THE U.S.A.; ROBERT C. CAMPBELL, INDIVIDUALLY AND AS GENERAL SECRETARY OF THE AMERICAN BAPTIST CHURCHES IN THE U.S.A.; AMERICAN COUNCIL OF CHRISTIAN CHURCHES OF CALIFORNIA; EDGAR R. KOONS, INDIVIDUALLY AND AS PRESIDENT OF THE AMERICAN COUNCIL OF CHRISTIAN CHURCHES OF CALIFORNIA; AMERICAN HUMANIST ASSOCIATION; FREDERICK EDWARDS, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF THE AMERICAN HUMANIST ASSOCIATION; CHURCH OF THE BRETHREN; ROBERT W. NEFF, INDIVIDUALLY AND AS GENERAL SECRETARY OF THE CHURCH OF THE BRETHREN; COUNCIL ON RELIGIOUS AND CIVIL LIBERTY; INSTITUTE OF WOMEN TODAY; THE NATIONAL ASSOCIATION OF EVANGELICALS; BILLY A. MELVIN, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF THE NATIONAL ASSOCIATION OF EVANGELICALS; NATIONAL ASSOCIATION OF LAITY; JOSEPH T SKEHAN, INDIVIDUALLY AND AS PRESIDENT OF THE NATIONAL ASSOCIATION OF LAITY; NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.; BISHOP PHILIP COUSIN, INDIVIDUALLY AND AS PRESIDENT OF THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.; THE NATIONAL COALITION OF AMERICAN NUNS; OHIO ASSOCIATIONS FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY; G. WEIR HARTMAN, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF OHIO ASSOCIATION FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY; PRESBYTERIAN CHURCH (U.S.A.); PROGRESSIVE NATIONAL BAPTIST CONVENTION, INC.; C. J. MALLOY, JR., INDIVIDUALLY AND AS GENERAL SECRETARY OF THE PROGRESSIVE NATIONAL BAPTIST CONVENTION, INC.; UNITARIAN UNIVERSALIST ASSOCIATION; UNITARIAN UNIVERSALISTS FOR RELIGIOUS FREEDOM; KEN GJEMRE, INDIVIDUALLY AND AS CHAIR OF UNITARIAN UNITARIAN UNIVERSALISTS FOR RELIGIOUS FREEDOM; HIGH WOODS REFORMED CHURCH; RIGHT REV. H. COLEMAN MCGEHEE, JR.; JAMES MANKIN; GARY H. BEAUCHAMP; GASTON D. COGDELL; P.D. WILMETHL; J. P. SANDERS; JAMES J. BROWN; W. L. LUMPKIN, ROBERT D. HUGHES; ROBERT A. PARKER; ALTON H. MCEACHERN; E. MALLARY BINNS; JAMES A. LANGLEY; MALCOM G. LUNCEFORD; CHARLES H. ASHCRAFT; RUDY A. PULIDO; C. WELTON GADDY; IRA H. PEAK, JR.; JAMES LEO GARRETT, JR.; PAUL GRIFFIN JONES, II; LEON HYATT, JR.; PHIL DOWELL STRICKLAND; RABBI BALFOUR BRICKNER; LARRY L. LEWIS; BERNARD F. DIDIER; JAMES P. ARCHIBALD; WILLIAM V. WIIST; R. LEE KRETZ; MITCHELL A. TYNER; WILLIS ADAMS, EDWIN E. G. SHAFER; GORDON W. ZUTZ; EDD DOERR; DAVID D. VAN STRIEN; THEODORE A. WEBB; JAMES F. HORNBACK; DAVID M. HOWARD; L. J. PETERSON; RONALD B. FLOWERS; NORMAN J. BAUER; FRED SCHWENGEL; GLEN A. HOLMAN; AUGUSTA P. FINKELSTEIN; CAROLYN E. MORGAN; MARY LEE S. O'NEAL; MARY BETH BECK; WALTER B. PONTYNEN, JR.; JAMES C. WEYDERT; LYNN L. WEYDERT; MICKIE L. WEYDERT; BERNICE G. GEORGE; BARBARA MOON; WILBUR F. HERMANCE; FLORIDA S. ESCHENBACH; JEWEL E. MORRISON; STEWARD M. L. POLLARD; WENDELL PHILLIPS BERWICK; C. R. CALEY; CHARLES H. SUMNER; LEA W. CLAYTON, JR.; ALBERT R. DILLEY; FRANCIS W. HENSLEY; ROBERT R. TILITZ; MARIO CUNIBERTI; JAMES T. MCCOLLUM; W. B. TICHENOR; CAROLINA C. CAPISTRANO; ALVIN W. STUART; JOHN V. STEVENS, SR.; HARRY F. MICHAELS; BAPTIST GENERAL ASSOCIATION OF VIRGINIA; ADVENTIST LAYMEN'S FOUNDATION OF ARKANSAS; ADVENTIST LAYMEN'S FOUNDATION OF MISSISSIPPI, APPELLANTS
v.
RONALD W. REAGAN, AS PRESIDENT OF THE UNITED STATES OF AMERICA; UNITED STATES OF AMERICA; GEORGE P. SHULTZ, AS SECRETARY OF STATE; DEPARTMENT OF STATE; JAMES A. BAKER, AS SECRETARY OF THE TREASURY; DEPARTMENT OF THE TREASURY; AND WILLIAM A. WILSON, AS THE UNITED STATES AMBASSADOR TO THE HOLY SEE



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge :

Americans United for Separation of Church and State and others appeal from a judgment dismissing their amended complaint against the President of the United States, the Secretary of the Treasury, and the United States Ambassador to the Vatican. The complaint sought declarations (1) that congressional actions consenting to the appointment of and funding for a diplomatic recognition to the Vatican --sending an ambassador to and receiving an ambassador from the Vatican--exceed the President's article II powers and violate both the first amendment and the liberty clause of the fifth amendment. The complaint sought a permanent injunction against funding of the diplomatic mission to the Vatican and an order enjoining the Ambassador from engaging in ambassadorial activity. The district court granted the defendants' Rule 12(b) motion to dismiss on the grounds that the plaintiffs lacked standing and that the controversy was not justiciable. We affirm.

I.

The Complaint

The amended complaint alleges that Americans United For Separation of the Church and State is a nonprofit corporation formed to maintain and advance civil and religious liberties through the enforcement of the rights and privileges of the Constitution. Other plaintiffs included twenty organizations that may be loosely defined as religious, twelve officials of those organizations, and seventy-one individual members of the clergy of various demoninations. It is alleged that each individual plaintiff is a citizen, a federal taxpayer, and a voter.

According to the complaint the United States appointed a counsul to the Papal States on June 26, 1797, and that in 1847 formal diplomatic relations beyond the consular level were established. That relationship continued until 1867 when a controversy arose over the prohibition in the City of Rome of public worship by non-Roman Catholic demoninations. Reacting to that controversy, Congress, in "An Act Making Appropriations for the Consular and Diplomatic Expenses of the Government for the Year ending thirtieth June eighteen hundred and sixty-eight, and for other Purposes," legislated that "no money hereby or otherwise appropriated shall be paid for the support of an American legation at Rome, from and after the thirtieth day of June, eighteen hundred and sixty-seven." Act of Feb. 28, 1867, ch. 99, 14 Stat. 412, 413. As a result of that legislation the United States terminated diplomatic relations with the Papal States.

In 1873 the modern Kingdom of Italy annexed the Papal States. In 1929, however, in the Lteran Treaty, the Kingdom of Italy recognized the "State of the City of the Vatican" while the Holy See renounced its claims over territory outside the Vatican City. The present State of the City of the Vatican is comprised of 108 acres of territory and has a population slightly in excess of 1000. Located in that territory is the world headquarters of the Roman Catholic Church.

It is alleged that beginning in 1939, and from time to time thereafter until 1984, several Presidents of the United States designated personal representatives to the Vatican. These personal representatives served without salary and were not subject to Senate confirmation.

On November 22, 1983 Congress repealed the restriction, contained in the 1867 Act, against expenditures for the support of the American Legation at Rome. See Act of Nov. 22, 1983, Pub. L. No. 98-164, § 134, 1983 U.S. Code Cong. & Ad. News (97 Stat.) 1017, 1029. At that time William A. Wilson was serving as President Ronald W. Reagan's personal representative. On January 10, 1984 President Reagan announced he would nominate Mr. Wilson as United States ambassador to the Vatican; the Senate confirmed Mr. Wilson as Ambassador on March 7, 1984. Pursuant to general legislation dealing with the support of diplomatic missions, the State Department designated funds for Mr. Wilson's salary and for other expenses relating to the support of the mission to the Vatican,.

The amended complaint alleges that the receipt of a diplomatic representative from, or the appointment of a diplomatic representative to, the Vatican violates the powers granted the President by article II of the Constitution, in that the Vatican is not a state upon which the President may confer diplomatic recognition. It alleges further that the establishment of diplomatic relations with the Vatican amounts to an establishment of religion in violation of the establishment clause of the first amendment. Finally, it alleges that the establishment of diplomatic relations constitutes a special preference of one religious group over others in violation of the equal protection component of due process clause of the fifth amendment.

Addressing their standing to litigate the foregoing constitutional issues, the plaintiffs alleged in paragraph ninety-five of their amended complaint that, in addition to the alleged injury they have suffered as taxpayers, they have suffered particularized injury in fact in that (a) they have been denied equal access to the Executive Branch of the United States Government because one denomination will have access through someone enjoying diplomatic status while they will have access only as citizens and religious leaders conversing with the President; (b) "the spiritual and moral teachings and beliefs of one church which asserts certain of those beliefs in the political arena of the United States will have a continuing relationship with the United States Government..."; (c) the symbolic preference for the Roman Catholic Church implicit in the United States Government's diplomatic recognition of the Vatican will enhance the ability of that church to compete in the religious marketplace; (d) the diplomatic relations will lead to interference by the President in the internal affairs of the Roman Catholic Church in the United States to the detriment of the church's members; (e) the establishment of diplomatic relations confers on the person designated by the Vatican as Papal Nuncio to the United States the benefits of the privileges and immunities of the statutes protecting diplomats (22 U.S.C. §§ 254(a)-(e), 256-258(a)(1982 & Supp. I 1983)) and the protections of the Vienna Convention on Diplomatic Relations (Apr. 18, 1961, 23 U.S.T. 2339, T.I.A.S. No. 7502) while no other clerymen are so protected; (f) plaintiffs are subjected to indirect pressure to conform to an unspecified ...


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