United Christian Scientists v. Christian Science Bd. of Directors, First Church of Christ, Scientist

• Decision Date: 22 September 1987
• Docket Number: No. 85-5959,85-5959
• Parties: , 1987 Copr.L.Dec. P 26,167, 4 U.S.P.Q.2d 1177 UNITED CHRISTIAN SCIENTISTS, et al. v. CHRISTIAN SCIENCE BOARD OF DIRECTORS, FIRST CHURCH OF CHRIST, SCIENTIST, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1152

829 F.2d 1152

265 U.S.App.D.C. 20, 1987 Copr.L.Dec. P 26,167,

4 U.S.P.Q.2d 1177

UNITED CHRISTIAN SCIENTISTS, et al. v. CHRISTIAN SCIENCE BOARD OF DIRECTORS, FIRST CHURCH OF

CHRIST, SCIENTIST, Appellant.

No. 85-5959.

United States Court of Appeals, District of Columbia Circuit.

Argued May 28, 1986.

Decided Sept. 22, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-03486).

Daniel F. Kolb, Washington, D.C., for appellant.

Arnold P. Messing, Boston, Mass., with whom Margaret H. Marshall, Boston, Mass., was on the brief, for appellees. David J. Hensler and Elliot M. Minceberg, Washington, D.C., also entered appearances for appellees.

Ronald A. Krauss, New York City, was on the brief for American Jewish Congress, amicus curiae, urging affirmance.

Before WALD, Chief Judge, ROBINSON, Circuit Judge, and EDWARD D. RE ^*, Chief Judge, United States Court of International Trade.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

At issue in this case is the constitutional validity of Private Law 92-60, ¹ which grants appellant, Christian Science Board of Directors of the First Church of Christ, Scientist (First Church), an extended copyright on all editions of Science and Health, with Key to the Scriptures (Science and Health), the central theological text of the Christian Science faith. Appellees, United Christian Scientists and David James Nolan and Lucile J. Place, two officers of a dissenting group of Christian Scientists, challenge Private Law 92-60, on grounds that it violates the Copyright Clause of the Constitution and, as well, the Establishment and Free Exercise Clauses of the First Amendment thereof. ² Finding that both the purpose and the effect of Private Law 92-60 were to aid religion, the District Court held that it contravenes the Establishment Clause. We conclude that Private Law 92-60 offends fundamental principles of separation of church and state, and accordingly affirm.

I

First Church was founded in the nineteenth century by Mary Baker Eddy. Christian Scientists follow the Bible as she expounded it in Science and Health. Together, the Bible and Science and Health are regarded as the pastor of the Christian Science Church, ³ and an edition of Science and Health is distributed worldwide through a network of Christian Science reading rooms. Sunday sermons are drawn from correlative passages of the Bible and Science and Health, and are published in advance in the Christian Science Quarterly to enable church members to study them during the preceding week. ⁴

In her lifetime, Mary Baker Eddy continually revised Science and Health, and published numerous editions. She obtained copyrights on seventeen of these editions, beginning with the first edition in 1875. ⁵ While the edition of 1906 was the last Mrs. Eddy copyrighted, she made a vast number of additional changes in its text between 1906 and her death in 1910. ⁶ A 1910 "final edition" of Science and Health incorporating these changes was published shortly before her death, but never copyrighted, it passed into the public domain. ⁷ First Church held all copyrights obtained by Mrs. Eddy during her lifetime. ⁸ By 1971, the year the challenged copyright law was enacted, all editions except the one in 1906 had entered the public domain. ⁹ It is a version of the 1906 edition, apparently incorporating many if not all of the changes appearing in the 1910 edition, that First Church currently publishes and distributes to its reading rooms. ¹⁰

United Christian Scientists is a group of Christian Scientists differing with First Church on matters of church membership and doctrine. So far as may be discerned from the record, the principal points of disagreement involve, both directly and indirectly, publication and distribution decisions concerning Science and Health. United Christian Scientists, which claims a current international membership of 11,000 and a mailing list of several thousand more, was formed by a group of adherents to Christian Science who desired to revitalize it through energetic proselytizing, primarily by means of worldwide dissemination of Mary Baker Eddy's writings in book and audio-cassette form. ¹¹ It is its belief that the 1906 version of Science and Health currently published by First Church is not the definitive version of Mary Baker Eddy's work. ¹² Rather, United Christian Scientists views the 1910 "final edition" of Science and Health as the ultimately authoritative statement of her teachings, ¹³ and it would like to distribute this edition by audio-cassette in complete and excerpted form, an activity it believes will meet with opposition from First Church.

Since 1978, United Christian Scientists has produced and mailed audio-cassette tape recordings entitled "Hear Ye the Glad Sound?" approximately once a month to its subscribers. The recordings include news of the organization's activities, as well as readings and commentaries of a religious nature. ¹⁴ On at least two different occasions, "Hear Ye the Glad Sound?" has included material in which First Church has subsequently asserted copyright claims--one a reading of Principle and Practice by Mary Baker Eddy, and the other excerpts from a book on Mrs. Eddy by Gilbert Carpenter. In each instance, after receiving a notice of copyright infringement by First Church, United Christian Scientists felt compelled to recall the cassettes and remove the copyrighted material, a process both expensive and time-consuming, as well as disruptive of its relations with "Hear Ye the Glad Sounds?" subscribers. ¹⁵

It is the current intention of United Christian Scientists to disseminate to its subscribers recordings of the 1910 "final edition" of Science and Health in complete and excerpted form, the latter to include verbatim excerpts from the 1910 edition, interspersed with passages from other works and appellee Nolan's commentary thereon. ¹⁶ These materials clearly fall within the copyright granted First Church by Private Law 92-60. ¹⁷ United Christian Scientists fears that its planned reproduction and dissemination of Science and Health will meet with infringement charges by First Church akin to those asserted against it in the past. ¹⁸ It therefore has refrained from commencing publication, and counted on a judgment declaring that Private Law 92-60 is constitutionally infirm so that it might undertake publication without threat of suit. ¹⁹

Private Law 92-60, enacted by Congress in 1971 when First Church's sole remaining copyright in the 1906 edition was in danger of lapsing, ²⁰ grants the trustees under the will of Mary Baker Eddy a new copyright to

all editions [of Science and Health ] ... in English and translation heretofore published, or hereafter published by or on behalf of said trustees, their successors or assigns, for a term of seventy-five years from the effective date of this Act or from the date of first publication, whichever is later. ²¹

By the terms of Private Law 92-60, then, the new copyright extends to all editions of Science and Health: the 1906 edition, to which First Church held a copyright at the time of the law's passage; editions in the public domain, whose protection under the general copyright laws had lapsed; and editions in the public domain because never copyrighted. The 1971 private law extends the effective copyright term for all editions of Science and Health extant in 1971 until 2046, and by providing that subsequently published editions are each to be protected for 75 years from the date of first publication, it may empower First Church to maintain the copyright for an indefinite period in variant editions of Science and Health which it does not choose to publish. ²²

In 1983, appellees instituted this litigation for declaratory relief, challenging the constitutionality of Private Law 92-60 in the United States District Court for the District of Columbia, and naming the Register of Copyrights as defendant. ²³ The District Court subsequently dismissed the Register of Copyrights and ordered that First Church, as the real party in interest, be substituted. ²⁴ The court denied the motion of First Church to dismiss for lack of subject-matter jurisdiction, ²⁵ and, on cross-motions for summary judgment, held Private Law 92-60 in contravention of the Establishment Clause of the First Amendment. ²⁶ This appeal followed.

II

Normally, a grant of a copyright on a religious work poses no constitutional difficulty. Religious works are eligible for protection under general copyright laws, and for decades Science and Health was unproblematically the beneficiary of that security, as more than thirty editions and translations of the Bible currently are. ²⁷ By contrast, Private Law 92-60 confers upon a religious body an unusual measure of copyright protection by unusual means, and in a fashion that interjects the federal government into internal church disputes over the authenticity of religious texts. But for Private Law 92-60, Science and Health would now be in the public domain, ²⁸ and because of the copyright conferred by Private Law 92-60, dissident Christian Scientists must defer, now and in the foreseeable future, to the will of First Church, under whose exclusive control Congress has placed all decisions respecting publication and dissemination of Science and Health.

On its face, such an extraordinary grant of power to a religious entity arouses Establishment Clause concerns. ²⁹ The First Amendment's proscription on establishment of religion does not demand total separation of church and state. ³⁰ It does require, however, unflagging vigilance to ensure that affairs of state do not become entangled with those of religion. As the Supreme Court has declared,

[t]he First Amendment's guarantee that "Congress shall make no law respecting an establishment of religion," ... is more than a pledge that no single religion will be...