The oral
arguments of the Wilmette NSA's appeal of Judge St. Eve's
decision favoring the Orthodox Baha'is was held on 20 February 2009 in Chicago
Illinois.
Here is a
transcript of part of the exchange between Mr. Handelman,the attorney for the
NSA, and a couple of the Judges of the Court of Appeals. No matter how hard he
tried to obfuscate the outrageous position of the NSA, the Judges carefully
questioned him and exposed the oppressive and fascist nature of the NSA's
position, and it is here for all the world to see. [Incidentally, Judge Bauer
below persistently questions Mr. Handelman on how the 1966 injunction was
entered and Mr. Handelman evades the fundamental truth that only the NSA
appeared at the "hearing" and that the Remey organization did not
appear and put on evidence (for some unknown reason). Mr. Handelman later
admitted that only the NSA appeared which means the Injunction was effectively
entered by "default"]
Here is part of the oral argument.
Handelman,
for Defendant-Appellant National Spiritual Assembly of the Baha'is of the
United States: The principle we are here advancing today has been adopted by
other courts of appeals and that is that a-- while the general rule is that a
nonparty cannot be
bound by an injunction issued in a case in which it wasn't named as a party,
there are -- there is an important exception to that general rule and that is a
nonparty is bound by an
injunction if he is legally identified with the defendant corporation...
Judge William J. Bauer: Do you know of any case involving that particular
rule that you enunciated to us in a civil rights case?
Handelman:
Your honor, there are a couple of cases on point, the Federal Circuit in
Additive Controls addressed this question of what do you do in applying an
injunction when the corporate defendant has been dissolved.
Judge Bauer: That had to do with a patent infringement case?
Handelman:
That is correct.
Judge Bauer: Other than a patent infringement case, do you have anything
besides-- civil rights cases that involve that theory that you just enunciated?
Handelman:
The two cases we rely on-- one is a patent infringement case Additive Controls.
The other one is a trademark infringement case
Judge Bauer: Also from the Circuit?
Handelman:
That is from the First Circuit
Judge Bauer: The First Circuit?
Handelman:
Correct. Both of these cases draw on, first of all, the fact that Rule 65d
codified the common law in this regard and so Justice Jackson in the Regal
Knitwear case summarized Rule 65d: "is derived from the common law
doctrine that a decree of injunction not only binds the parties defendant but
also those identified with them
in interest."
Judge Bauer: Let me intrude myself again. Was the original injunction a consent
decree or was it a fought out battle?
Handelman:
No the scenario leading to the injunction, the...
Judge Bauer: No, all I ask is a very simple question. Did Judge Austin formulate
this decree himself or was it a consent decree?
Handelman:
It was not a consent decree.
Judge Bauer: OK
Handelman:
There were findings of fact and conclusions of law...
Judge Bauer: Based on a contested argument before, and presentation of evidence
before Judge Austin?
Handelman:
The... my understanding is that the NSA...
Judge Bauer: See you weren't around in those days. I was.
Handelman:
But your Honor Judge Austin.. Bare in mind this was the counterclaim, the
original was, was against the NSA. The trademark infringement claim was brought
by way of a counterclaim. So they started it. We responded and there was a
findings of fact and conclusions of law entered by Judge Aspen.
Judge Bauer: After a hearing?
Handelman:
I do not know if there was testimony at the hearing. I do not believe there was
testimony given at the hearing by both sides but Judge Austin...
Judge Bauer: What was the predicate for the decision? Stipulation of facts?
Handelman:
No, there was no stipulation, the NSA...
Judge Bauer: Then how did he arrive at a decree at all?
Handelman:
The uh, I believe, the NSA submitted, appeared at the hearing and presented
Judge Austin. I don't know if there was live testimony at the hearing or not
but it presented evidence on which the findings and conclusions were based.
Judge Bauer: What evidence did they and how did they present it?
Handelman:
Well, for example, the deposition of the chairman of the UHG was taken and
submitted to the Court, so we had the deposition...
Judge Bauer: Accepted by both sides as factually true?
Handelman:
The testimony was sworn deposition testimony of the Chairman
Judge Bauer: There is sworn testimony on each side of the case normally but I want
to know, how did Judge Austin arrive at the conclusion if there was no
presentation of live witnesses?
Handelman:
Um
Judge Bauer: Was it a stipulation of facts? In which case..
Handelman:
No I do not believe it was a stipulation, your honor. We can look into whether
Judge Bauer: It was a question of fact, and he made a resolution based on
affidavits?
Handelman:
If I could look into that and get back to you I would prefer to do that.
Judge Bauer: I have no idea how the decree came to be, thats my problem
Handelman:
OK
Judge Diane S. Sykes: Do you know whether the constitutionality of
issuing such an Injunction was litigated, given the religious context?
Handelman:
Yeah, I believe Judge Austin made explicit findings that the trademark laws
apply equally to religious organizations and commercial organizations and that
this, this case involved a blatant infringement of trademark rights that were
recognized under federal law.
Judge Sykes: The legal landscape in this area of course has changed since then. We
are talking of, about an injunction issued 40 years ago and the Supreme Court,
in the meantime has issued the Presbyterian Church case that talks about the
principles, the neutral principles doctrine that needs to be applied in this
context, and of course that
case wasn't on the books at the time.
Handelman:
That is correct your honor. With respect to, first of all the validity of the
trademark and the finding of infringement, those issues are not open to be
retried in the context of a contempt proceeding as a prefatory matter, but
beyond that the law is well
settled that religious organizations as I mentioned are entitled to the
protection of the trademark laws and in this case...
Judge Sykes: But they are not entitled to a judicial declaration that their
church is the one true church and thats what Judge Austin said.
Handelman:
Well if, your honor, in the context of a religious case under the Lanham Act,
the mark is valid. There is no per se rule against trademark protection in the
religious organization context. What you look at is whether the mark in
question signifies affiliation or membership with a single organization and in
this case the National
Spiritual Assembly has a three tiered administrative structure as is laid out
in the briefs. You have the Universal House of Justice at the highest level,
you have the national spiritual assemblies at the intermediate level of which
there are 183 worldwide, and then you have the local spiritual assembly. The
Baha'i mark is federally registered, is extensively used, was federally
registered at the time of the original injunction, and it signifies members who
are affiliated with national spiritual assemblies authorized by the Universal
House of Justice in Haifa. Now whats happening in this case, the Alleged
Contemnors, are through their web sites calling themselves the official, in one
case, the SIBC has a web site where it calls itself the official Universal
House of Justice, and as a result prospective members are going to that site
thinking they are contacting our client, the Universal House of Justice in
Haifa Israel, when they are not. They are also believing that the content on
the site is approved by the Universal House of Justice, when it is not. And
this is precisely the harm that the Lanham Act is intended to prevent and
Professor McCarthy in his treatise recognizes as much, and if I could quote
briefly: "If a parent religious society remains true to the tenets of the
religion it is entitled to protection against the minority's use of the same
name. For example, a preliminary injunction can be obtained by the Mother
Church against a local which has disaffiliated as it stops paying to the Mother
Church and the rationale makes sense because without a preliminary injunction
the Mother Church would be outside of..."
Judge Bauer: Who are you quoting at the moment?
Handelman:
Professor McCarthy, his treatise on Trademark and Unfair Competition. So he is
recognizing...
Judge Bauer: He is recognizing but the Supreme Court is more significant than
Professer McCarthy is I would suspect, wouldn't you?
Handelman:
But the point is that this case does not call upon this Court to evaluate
religious doctrine. It calls upon this Court to apply the Lanham Act to
religious organizations which has been done before.
Judge Sykes: Well to the extent that you are reading the injunction as
prohibiting anyone other than the NSA from using the word Baha'i in the title
of the religious organization's name, um, that clearly
raises some constitutional concerns. Is that how you are reading the
injunction? That you have exclusive, that your client has exclusive rights to
the term Baha'i and no schismatic organization, schismatic group, breakaway
group could ever use it into perpetuity in the United States?
Handelman:
As long as the trademark rights are valid and federally registered and not
abandoned, that is correct, as Professor...
Judge Sykes: The word Baha'i? So to use a hypothetical. Someone could copyright
Christianity. Somebody could copyright Judaism, and that would prohibit anybody
else from using that terminology in the title of their religious organization?
Handelman:
No, each, each religious name or
Judge Sykes: I am sorry, not copyright, trademark.
Handelman:
Yeah, each religious name or mark has to be evaluated on its own merits. There
is no blanket...
Judge Sykes: But whats the response to the hypothetical, though?
Handelman:
The hypothetical is yes, we. In other words a splinter group that is not
affiliated with the National Spiritual Assembly authorized by the Universal
House of Justice is not permitted to use the term Baha'i in a way where it is
holding itself out as being affiliated with the group headed by and authorized
by the Universal House of Justice.
Judge Sykes: Well that's, that's, different. But they can use the word Baha'i in
the name of their new church, but they just can't use it in a way that implies
affiliation with the Mother Church.
Handelman:
That is correct. They cannot, cannot confuse the public into believing that
they are affiliated with the Mother church when they are not, particularly
where, as here, their doctrines are in many cases antithetical to those
espoused by the Mother Church.
Judge Sykes: What could they call themselves and escape liability for contempt?
Handelman:
They would have to use a non-confusingly similar name because they are not...
Judge Sykes: Can they use the word Baha'i?
Handelman:
It would depend on-- not if it suggested affiliation with the Mother Church.
Judge Bauer: How about Reform Baha'i? Can they use that term?
Handelman:
That would be a hypothetical that...
Judge Bauer: That's my hypothetical...
Handelman:
It would...
Judge Bauer: And I want a hypothetical answer.
Handelman:
If the use suggested affiliation...
Judge Bauer: I just gave it to you. Reform Baha'i.
Handelman:
No that. Under the injunction, that would be prohibited. The injunction...
Judge Bauer: Yeah, I read the Injunction. I just don't know how it came to be. But
you're going to enlighten me on that subject.
Handelman:
So the injunction would prohibit a use likely to cause confusion as to
affiliation....
COMMENT BY JEFFERY GOLDBERG
Funny thing is
Mr. Handelman quotes from Professor McCarthy that "If a parent religious
society remains true to the tenets of the religion it is entitled to protection
against the minority's use of the same name." Of course, the Wilmette NSA
DOES NOT REMAIN TRUE to the tenets of the religion as the Orthodox Baha'is are
constantly pointing out.
We do not know
how the Court will rule, but clearly the Judges of the 7th Circuit are not
fooled by the NSA's obfuscation. The NSA wants the Courts to enforce their
belief that they are the one and only Baha'i Faith, and the NSA has proved
itself to be in contempt of the basic religious freedoms of this country, even
while the publicly whine about similarly motivated persecution against them in
Iran, a country that does not have the same traditions of freedom of religion.
The true colors
of the NSA come out here. They would trample over our freedom of religion and
the Bill of Rights of the U.S. constitution.
This is the World Order they seek to impose upon the world.
Jeffrey
There has been
no evidence that the Orthodox Baha'is have any web sites or publications that
confuse the public to believe that we are affiliated with the headless UHJ. To
the contrary, everything on our sites is critical of that organization and
expressly points out our differences. But they have taken the position that
simply use of the word "Baha'i" somehow creates the confusion and
this is an absurd and over-reaching view.
Jeffrey
The suit
involves both the Orthodox Baha'is and the Baha'is under the Provisions of the
Covenant (which is the Jensen/Chase group and I believe is responsible for the
web site you mentioned). My point was that there is nothing like that from the
OBF group. The NSA's actual position, as stated by Handelman after questioning
by the Judges, is that nobody else can use the word Baha'i, and this position
is outrageous if only you could see dispassionately and free of fanatic
blinders.
Jeffrey
There is no
confusion in use of terms. The NSA's attorney was trying his best not to state
what their position was, but after being hammered by the Judges, he was forced
to admit that the NSA wants to enforce the Judgment's finding that they are the
one true Baha'i Faith and they are the only ones who could call themselves
Baha'i.
This finding
happens to be unconstitutional and goes against a long line of Supreme Court
precedent which began in 1969, several years after the Judgment was entered.
This is what bothers the Judges of the Court of Appeals. The NSA is asking them
to deny us our religious freedom-- the right to call ourselves Baha'is.
Jeffrey
The comments of
the heterodox believers demonstrates their lack of understanding of the Faith.
They don't think that preventing us from calling ourselves Baha'i would prevent
us from practicing our religion. But isn't that what the Iranian authorities
are doing:
"Stop saying you are a Baha'i and then we will restore your rights"?
They
effectively wish us to recant our Faith.
Jeffrey
The Supreme
Court case was not decided until 1969, and at the time of the 1966 Judgment the
federal courts were split on the issue (which split was resolved by the Supreme
Court).
The Orthodox
Baha'is did raise the issue and the line of cases from 1969 on neutrality
principles, but Judge St. Eve never even reached the issue because she ruled
that the Orthodox Baha'is were not even bound by the Judgment. Since we are not
bound by it, the question of the Judgment's enforceability did not have to be
decided.
Jeffrey
I believe this
is a correct statement. There is binding authority and persuasive authority. A
decision of this Court of Appeals is binding only in the 7th Circuit, although
its logic and reasoning will be persuasive beyond that.
Jeffrey
Not only does
Judge Bauer mention Reform Baha'i but he insists that the NSA's attorney answer
whether or not someone could call himself a Reform Baha'i, and the NSA attorney
finally is forced to admit the NSA's position which is that nobody can call
themselves a Baha'i unless they are recognized by his client's UHJ.
Jeffrey
Not only is it disgraceful, but it is extremely
hypocritical for them to run to Congress seeking its condemnation of Iran for
persecution of Baha'is when they are doing the same to us. While the
NSA's persecution of the OBF may be different in scale (but only because the
NSA does not have the power to imprison us or execute us), they are
motivated by the same idea that they perceive us to be heretical and because we
are opposed to their religious authority. It is mind- boggling for these people
to expect the federal courts in the United States to enforce their version of
the Baha'i Faith, to say they are the one true Faith and everyone else cannot
be Baha'is.
It really does not matter, though, whether they get
a court order against us, or whether they have suckered a whole bunch of people
so that they have larger numbers. It does not matter how small we are.
The only thing that matters is what is true and
what is false. They are false and they are destined to fail. Their entire
organization is a house of cards ready to tumble down at any time. Thank
God for that!
Jeffrey
