EXCERPTS
LEGAL DOCUMENTS
EEOC VS PPPA
Note- The printed manuscript has the photocopies of
the original court document pages.
You can obtain the manuscript
HERE.
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Table of Contents
OPENING BRIEF FOR DEFENDENTS
p. 1
AFFIDAVIT – Neal C. Wilson
p.
21
AFFIDAVIT – Robert H. Pierson
p.
28
AFFIDAVIT – Lorna Tobler
p. 35
REPLY
BRIEF FOR DEFENDANTS
p. 39
REPORT
TO THE CHURCH – Robert H. Pierson
p. 47
RESPONSE TO “REPORT TO THE CHURCH”
p. 49
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WHAT YOU WILL FIND
Nature of the Legal Case: Defendant's Viewpoint
1
Plaintiff's Viewpoint
50
Personalities Involved in the Case
13,16,17
SDA Church Above all Laws of the Land
49
GC Legal Advisor (A Seventh-day Adventist)
Involved in Preparation of Briefs
20
General Conference is the Church
8, 10, 24, 25, 28
Between Sessions of GC, the Executive Committee
"wields all the powers of the Church"
44
The SDA Church "hierarchical"
37, 41, 43, 45, 53-55
"First Minister" - GC President
15, 31, 37, 53
"Ecclesiastical. superiors"
17
"Orders of Ministry"
11, 33, 37, 53
Clergy of Church "administer the sacraments"
33, 37
Workers of Church serve even as "a cloistered nun"
in Catholic Church
18 ,37
Necessary for Church (GC) "to establish its
authority in community of believers"
26
Prophetic Teaching in regard to Papacy consigned
to "historical trash heap"
41
Not "good Seventh-day Adventism" to have
"aversion to Roman Catholicism"
46
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UNITED
STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
Vs.
PACIFIC PRESS PUBLISHING ASSOCIATION, et al.,
Defendants,
Civ.
No. 74-2025 CBR
OPENING BRIEF FOR DEFENDANTS IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT
Introductory: This Is a Head-On Confrontation Between Church and State,
Unprecedented in the History of Our Republic
This is a suit by the United States against the Seventh-day Adventist
Church.
That simple statement is enough to suggest that the case is unusual; but
there is more, which shows that the case is fantastic: The Government
seeks an injunction which would control the internal affairs of the
Church and dictate the manner in which the Church carries on God's work
in the world.
The First Amendment -- without which there would have been no
Constitution -- became effective one hundred eighty-three years ago, on
December 15. 1791, and provides in its opening words,
"Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof."
We cannot find that such a case as this has ever before arisen. Not in
one hundred eighty-three years since the First Amendment has been part
of our fundamental law, has the Government sued a Church in the
government's courts, in order to prescribe who it
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shall
employ to edit its religious publications, or who it shall admit to the
governing councils of religious organizations, or how it shall deal with
church members who flout ecclesiastical authorities. If, as we suspect,
the case is absolutely unprecedented, 1 that
of course is as it ought to be.
Not
only is the case unprecedented, not only would the granting of any
relief whatever be a plain violation of the First Amendment, the very
maintenance and prosecution of the case is unconstitutional. The haling
of Ministers of the Gospel before notaries public to respond to
inquisition by attorneys for the United States concerning divisive
activities within the church -- extending even to interrogation
concerning sermons preached in chapel worship services! -- is an
impermissible governmental entanglement in church affairs, and violates
the Establishment Clause.
At the
outset we recall that the First Amendment's history is directly
traceable to James Madison's "Great Memorial and Remonstrance" against
taxation to support an established church, See Everson v. Board of
Education, 330 U.S. 1, 11-12 (1947); that following the defeat of this
tax, "the Assembly enacted the famous 'Virginia Bill for Religious
Liberty' originally written by Thomas Jefferson," id. at 12; and
that the Supreme Court has previously recognized that the provisions
_________________________
1. But
cf. Mormon Church v. United States, 136 U.S. 1, (1890), in which, after
a church corporation in the territory of Utah had been dissolved by Act
of Congress, the United States applied for a receiver to take possession
of its property (except that devoted to liturgical purposes), and
liquidate it. The Court's first holding was that Congress did have power
to revoke the Articles of Incorporation. That having been done, there
could be no First Amendment objection to proceedings to wind-up the
corporation and distribute its assets.
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Prefatory Note on Seventh-day Adventists
The
Seventh-day Adventist Church is a recognized Christian denomination,
organized as such in 1863, but with its roots in the Millerite movement
in the 1840's.
What
distinguishes Seventh-day Adventists from other Christian denominations
is chiefly two aspects of their faith which give the Church its name:
"Seventh-day":
The Church believes that the true Sabbath is not Sunday, which is the
first day of the week, but the Biblical Sabbath on which God rested,
Genesis 1:2-3, and which Moses, "the lawgiver, and God's first pen",
commanded the people of Israel to keep holy. Exodus 20:8-11. This is,
then, a Sabbatarian denomination which observes the Sabbathfrom sunset
Friday to sunset Saturday. Its Fundamental Beliefs include (YB 5,
116, 7):
"That the
will of God ... is comprehended in His law of ten commandments; ..."That
the fourth commandment of this unchangeable law requires the observance
of the seventh-day Sabbath ...."
This is a tenet shared, of course, not only by all of Judaism but also
by other Christian denominations, as for example the Seventh-day
Baptists.
"Adventist":
Adventism is the doctrine which holds that the second coming of Christ,
promised in John 14:1-28 and elsewhere, is near at hand. Adventism is
deeply rooted in Hebrew and Christian prophetism, messianism, and
millennial expectations recorded in the Bible. As to this the
Fundamental Beliefs say (YB 6 120):
"That the
second coming of Christ is the
great hope of the church, the grand climax
of the gospel and plan of
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salvation ... The almost complete fulfilment of various lines of
prophecy, ...with existing conditions in the physical, social,
industrial, political, and religious world, indicates that Christ's
coming is near, even at the doors. ... Believers are exhorted
to be ready ...."
From a
few faithful, but disappointed Millerites who awaited Christ's coming on
October 22, 1844, the Seventh-day Adventist Church grew from some 17,000
members in 1880, to over 30,000 in 1890, to 75,000 members in 1900,
500,000 by 1940, 1,000,000 by 1960, and 2,000,000 by 1970. At the end of
1973 there were 2,390,124 baptized members of the Seventh-day Adventist
Church throughout the world.
Seventh-day Adventist doctrine does not permit discrimination against
any person on the basis of race, national origin, or sex. However, only
members of the Church who are in good standing are eligible for
employment by the Seventh-day Adventist Church, its departments and
institutions, which are integral and vital organs of the Church.
Statement of the Case
I. Founding of the
Seventh-day Adventist Church
A.
The Prophecy of Isaiah: "Only a Remnant
Shall Be Saved"
God's promise to Israel, Genesis 17, has not failed, for the promise was
not made to Abraham's physical descendants merely as such, but to those
whom God chose. God's choice or election is not limited to the Jews: the
promise also applies to the Gentiles. Moreover, God's promise never
included all of the Israelites: "And it shall come to pass in that day,
that the remnant of Israel, and such as are escaped of the house of
Jacob, shall no more again stay upon him that smote them; but shall stay
upon the Lord, the Holy One of Israel, in truth.
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"that constitutes the image of Adventism. It is not independent voices
or deviating minority opinions. That is the strength and the genius of
true Adventism. "It is not dishonorable to have honestly held an
erroneous position – if one accepts light as it is shed upon dark
problems. It is obstinacy and refusal to advance in that light that is
wrong and censurable."
During her lifetime, Mrs. White produced a great many books, which have
been many times reprinted, and which Seventh-day Adventists regard as
second only to the Bible in importance for the revelation of their
beliefs. She is, in fact, the
only post-Biblical person mentioned by name in the Fundamental Beliefs
of Seventh day Adventists, (YB 6, 119):
"That God has placed in His church the gifts of the Holy Spirit, as
enumerated in 1 Corinthians 12 and Ephesians 4. That these gifts operate
in harmony with the divine principles of the Bible, and are given for
the perfecting of the saints, the work of the ministry, the edifying of
the body of Christ. Rev. 12:17; 19:10; 1 Cor. 1:5-7.
That the gift of the Spirit of
Prophecy is one of the identifying marks of the remnant church. 1 Cor.
1:5-7; 12:1; Rev. 12:17; 19:10; Amos 3:7; Hosea 12:10, 13. The remnant
church recognizes that this gift was manifested in the life and ministry
of Ellen G. White."
The writings of Ellen G. White are collectively referred to by
Seventh-day Adventists as the Spirit of Prophecy. While
Seventh-day Adventists believe that they have been especially blessed
through the visions conferred upon that Church through its prophet Ellen
G. White, and while they believe that most of the Protestant Church is
in error through failure to obey all of the Ten Commandments,
(through nonobservance of the true Sabbath as required by the Fourth
Commandment), the Church
recognizes itself as only one part of the Body of Christ, which is the
blessed company of all faithful people.
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Movement of Destiny 28; "So with
bonds that cannot be broken we are tied into God's continuing church,
covering the whole of the Christian dispensation." Indeed, Adventists do
not profess to be the whole even of the Remnant Church, for the great
body of those who will eventually be saved is still outside the Church,
but will become a part of the Remnant before the Last Day.
E. The Whites and the Foundation of the Publishing Ministry; The
Battle Creek Years
In the early days of the Seventh-day Adventist Church, the pioneers
through the counsel of their prophet, Ellen G. White, began the ministry
of the printed Word. Mrs. White writes in Life Sketches 125:
"At a meeting held in Dorchester, Massachusetts,
in November, 1848, I had been given a view of the proclamation of the
sealing message, and of the duty of the brethren to publish the light
that was shining upon our pathway.
"After coming out of vision, I said to my husband: 'I have a message for
you. You must begin to print a little paper and send it out to the
people. Let it be small at first; but as the people read, they will send
you means with which to print, and it will be a success from the first.'
From this small beginning it was shown to me to be like streams of light
that went clear round the world."
In 1849 the Whites were living in relative poverty at Rocky Hill,
Connecticut. "While we were living at this place, my husband was
impressed that it was his duty to write and publish the present
truth. He was greatly encouraged and blessed as he
2. Cf. Streams of Light: The Story of the Pacific Press (1958).
3. 2 Peter 1:12: "Wherefore I will not be negligent to put you always in
remembrance of these things, though ye know them, and be established in
the present truth."
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"In 1861 the first institution in the Seventh-day Adventist denomination
was incorporated. It was not a school, not a hospital, but a publishing
house, the Review and Herald
Publishing Association. In 1863, two years later, the church was
organized into the General Conference."
F. The Denomination Founded, and the Foreign Mission Begun
____________________________________
By the 1850's there were small groups of Sabbath-keeping Adventists in
several of the States. But there was no general church organization, and
no ecclesiastical authority. The only thing that united these believers
was the Spirit of Prophecy:
it was "the one rallying point of the faithful, the final court of
appeals."- They could, at first, not even agree on a name: several were
suggested, but Seventh-day Adventist came to be favored; and in 1861
Mrs. White "was shown in regard to the remnant people of God taking a
name .... No name which we can take will be appropriate but that which
accords with our profession and expresses our faith and marks us a
peculiar people. The name Seventh-day Adventist ... is the line of
distinction between the worshippers of God and those who worship the
beast and receive his mark." 1 Testimonies 223. The emergence of
the General Conference in 1863 was not the result of the imposition of
authority by self-appointed leaders, but rather of the natural and
gradual unification of the local churches into a central and
representative (hierarchical) ...
____________________________
4. The name of Elder White's periodical was foreshortened to The Review
and Herald, and the name of the corporation was changed to that given by
Elder Wickwire. In 1905 this publishing house was moved to Washington.,
D.C. as was the headquarters of the Church. The Review and Herald is one
of the oldest, if not the oldest, continuously-published denominational
periodicals in the nation.
5. Movement of Destiny 141, quoting 1 Spalding, Origin and History 293.
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organization. In 1859 Elder James White suggested that the churches in
each State should hold a yearly meeting to lay plans for the year to
follow. Review & Herald, July 21, 1859. These meetings began to
be held in 1860, and the first informal gatherings grew into constituted
bodies with regularly elected delegates and leaders. Inevitably, this
led to the holding of the first General Conference, at Battle Creek in
May of 1863. There were duly elected delegates and committees; a
constitution was adopted, an officer staff elected; and so the
Seventh-day Adventist Church came into being, as the General
Conference Seventh-day Adventists. In 1874, the Seventh-day
Adventist Church took its first step toward becoming a worldwide
movement by sending abroad, under the auspices of General Conference,
its first foreign missionary, Elder John N. Andrews.
II. The
Seventh-day Adventist Church Today
A. Mission of the Church
"The object of this Conference is to teach all nations the everlasting
gospel of our Lord and Saviour Jesus Christ and the Commandments of
God." This is the object
of General Conference as set forth in Article II of its Constitution.
(Art. ii, YB 7.)
As stated in the affidavit of the Church's First Minister (Pierson AE
1): "I am Robert H. Pierson, an ordained minister of the gospel, and
president of the General Conference of Seventh-day Adventist, which
is the Seventh-day Adventist Church, and ...
___________________
6. Movement of Destiny 140-41.
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which was established for the purpose of following the instruction of
Jesus Christ when he said, 'And this gospel of the Kingdom shall be
preached in all the world for a witness unto all nations; and then shall
the end come.' Matthew 24:14." The major activities of the Church are in
four areas of religious activity: Evangelistic preaching, which
is conducted in hundreds of
languages around the world; Publishing religious literature,
which is printed in more than fifty publishing houses in all principal
countries, and the sale of that literature by church members called
literature evangelists (colporteurs); Maintaining schools,
including primary, secondary and colleges in the U.S.A., and many other
countries, plus graduate schools, and a medical college at Loma Linda,
Calif.; Maintaining hospitals, or sanitariums, including the
first one at Battle Creek, and one at St. Helena, in California.
B. Structure of the Church: The Conferences, Departments, and
Institutions; Signification of General Conference
____________________________________
Among Seventh-day Adventists there are five steps leading from the
individual believer to the worldwide organization of the work of the
church.
1. The church, a united body of individual
believers in a locality.
2. The local conference or local field, a united body of churches in a
State, province, or local territory.
3. The union conference or union field, a united body of conferences or
fields within a larger territory.
4. The division, a section of the General
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Conference, embracing local or union conferences or fields in large
areas of the world. (Euro-Africa Division is one of these.)
5. The General Conference, being the general body embracing the church
in all parts of the world. Church Manual 47 (1971). The
General Conference, then, is the Seventh-day Adventist Church. So
the term "General Conference" has three overlapping meanings:
a. The embodiment of the Remnant Church as a Christian denomination, in
a unified worldwide organization to which all baptized Seventh-day
Adventists owe spiritual allegiance:
b. The actual quadrennial meeting of delegates, the General Conference
of the Church, the only body having authority to alter the structure of
the church either in doctrine or organization.;
c. The permanent staff at world headquarters in Washington, D.C., which,
acting through the Executive Committee, attends to
the work of the Church between the conferences.
The Departments and Institutions of the Church are listed in the
Yearbook. They include entities with such apparently disparate names as
The International Insurance
Company, Geoecience Research Institute, Home Health Education Service,
Castle Memorial Hospital, and Loma Linda Foods. But they are all the
Church, as truly as is a house of worship: Says the Church's First
Minister (Pierson AE13):
___________________
___________________
A. In the past the General Conference has met every four years, most
recently at Atlantic City in 1970. Owing to the heavy cost of the
quadrennial Conference it has been decided to extend the interval to
five years. The next General Conference will be at Vienna, Austria in
1975.
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"As stated in Article II of the Constitution and By-Laws, 'The object of
this Conference is to teach all nations the everlasting gospel of our
Lord and Saviour Jesus Christ and the commandments of God.' All of the
Divisions, Conferences, Missions, and Institutions, including Publishing
Houses, are integral parts of the Church. We believe that their work is
God's work."
B. The Orders of Ministry: Ministers,
Missionaries, and Evangelists The orders of ministry in
the Church are based upon St Paul's letter to the church at Ephesus:
"And he gave some, apostles, and some, prophets; and some, evangelists;
and some, pastors and teachers; For the perfecting of the saints, for
the work of the ministry, for the edifying of the body of Christ; Till
we all come in the unity of the faith, and of the knowledge of the Son
of God." Ephesians 4:11-13. The orders of ministry in the Seventh-day
Adventist Church include Ordained Ministers, Credentialed Missionaries,
Licensed Ministers, Licensed Missionaries, and Credentialed Literature
Evangelists. All of these are ministers of the Church, charged by
God with carrying on His work. The policy of the Church with respect to
Credentials and Licenses, and the method of their issuance, together
with certain other aspects of Church policy, are set forth at pp. 76-87
of the General Conference's Working Policies. (See Pierson AE 113, p.8
and Exhibit A thereto.) An ordained minister, is authorized,
expected, and commissioned by God to preach the gospel of Our Lord Jesus
Christ, and to administer the rites of marriage,
Baptism, ordination, and
communion, whether or not he is in a pastoral
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assignment, or whether he is also a physician, a teacher, an editor
(Tobler DS6), or an administrator. Ordained ministers in addition to any
special education and training (such as medicine), have theological
education; some of the Elders of the Church were frontier preachers, but
theology today is learned at a Seventh-day Adventist Seminary.
Licensed ministers are usually seminarians, or others, who look
forward to ordination upon completion of their education and training.
Credentialed missionaries are ministers of the Church, in
remunerative employment with the Church or its institutions, and who
have positions which require experience and impose responsibility.
Licensed missionaries, also ministers of the Church, are persons in
similar employment who have not yet attained the stature of credentials.
Literature evangelists are those engaged in the colporteur
ministry. (Pierson Aff. 114, p.8.)
D. Importance of the Publishing Mission: The Publishing Houses,
Adventist Book Centers, and the Colporteur Ministry__________
The Publishing Mission lies at the very foundation of the Seventh-day
Adventist Church. The Church was founded, and it continues to rest, on
the power of the printed Word. The founders of the Church began the
publishing ministry fifteen years before the small groups of believers
scattered throughout New England and the Midwest were welded into an
organized Christian denomination. The experience of the Seventh-day
Adventist Church in this regard
accords with that of the whole Body of Christ's church. Thus, Bishop
John Durham Wing in his introduction to Dean Gilman's In God's
Presence:
"Like every other natural instinct, our desire to pray needs to be
cultivated,
trained, and guided.
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Mountain View which lies astride the San Andreas Fault, was in the main
shock area, and the plant was extensively damaged. A few months later
the entire rebuilt plant was consumed by fire. Once again the plant was
rebuilt. After this, the plant was operated only for denominational
work; and that has since been and remains the policy of Pacific Press.
It Is a Seventh-day Adventist Publishing House, and that only. The
officials of Pacific Press who figure in this case are these:
Elder R.R. Bietz is a retired minister, and a former Vice-President of
General Conference; he is a chairman of the board of directors, and the
President, of Pacific Press.
The General Manager until November 30, 1973 was Elder L.F.Bohner. On
December 1, 1973 Elder W.J. Blacker became General Manager. The General
Manager is also Vice-President of Pacific Press Publishing Association.
Its only other officer is the Secretary-Treasurer, W.F. Muir. Elder
Lawrence C. Maxwell is the Editor of Signs of the Times; his
secretary is Mrs. Lorna Tobler. Elder Richard Utt is Book Editor of
Pacific Press; he has two Associate Book Editors, Elder Ivan Crawford
and Elder Theodore R. Torkelson (who also serves as Associate Editor of Sign);
an Assistant Book Editor, Max G. Phillips; an Editorial Assistant, Mrs.
Merikay Silver; and during the events leading up to this case, as
secretary Mrs. Arbie Kreye.
The Religious Life of the Press
The Pacific Press employs only individuals who are in good and regular
standing in the Seventh-day Adventist Church, and (except in the
circumstances of this case) retains in employment
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only persons who maintain that standing. The regular work day at Pacific
Press begins at 7:30 in the morning and ends at 4:30 in the afternoon,
except on Fridays when it ends at 1:30. The Sabbath, as observed by the
Seventh-day Adventist Church, begins at sundown on Friday and continues
until sundown on Saturday. The Press closes early on Friday in order
that its people may attend to their duties preparatory for the Sabbath,
which in winter sometimes begins before five o'clock (Blacker AE 8). The
working week at Pacific Press begins with a chapel exercise at 7:30 each
Monday morning, at the chapel which is on the grounds of the Press. This
exercise begins with a devotional song, usually a production of Chapel
Records, a department of the Press; it is followed by a sermon by an
ordained minister, or some other presentation that relates to the
church; and the 30-minute period closes with prayer. (Blacker AE 9.)
Contrary to the Government's impression, these chapel exercises are not
"meetings" where "talks" are given; they are worship services at which
sermons are preached. (Maxwell DE17-19.)
All employees are paid for their time attending chapel services, and
they are expected to attend these services with the same faithfulness
and diligence that they are expected to bring to the other aspects of
their employment. In other words, attendance at the chapel service on
Monday morning is part of the job, for everybody at the Press including
the General Manager. In addition, because it represents the one occasion
each week when all employees are gathered together in one place (except
the night shift, who hear a tape recording of the chapel exercise when
they come to work on Monday), the Monday morning chapel time is used, as
appropriate, to make announcements of general
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Adventist Church. (Blacker AE 113-6, 12-18.)
The
officials of General Conference who figure in this case are the
following:
Elder
Robert H. Pierson is the President of General Conference and, as such
the first minister of the Seventh-day Adventist Church.
Elder
Neal C. Wilson is Vice-President for North America of General Conference
and as such, the spiritual leader of Seventh-day Adventists in North
America and the Advisor to all of its departments and institutions, as
well as to all churches and individual church members within the
Division. He holds positions in many of the institutions including the
Vice Chairmanship of Pacific Press.
Elder Bruce M. Wickwire is an Associate Secretary in the publishing
department of General Conference, with jurisdiction over those
publishing houses, including Pacific Press which are direct parts of
General Conference.
3. Euro-Africa Division and Hamburg Publishing House
The Government has undertaken to sue also the Euro-Africa Division of
General Conference and something it calls "Staat-Korn Verlag GmbH a/k/a
Hamburg Publishing House." These entities are nonexistent, not within
the jurisdiction of any Court of the United States, or both, and in any
event have not been and cannot be served with process. They should both
be dismissed out of the case...
______________________
8. We have filed our motions to dismiss simultaneously with the motion
for summary judgment; and this subhead constitutes our brief on the
motion to dismiss.
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Euro-Africa is not an entity, but an administrative subdivision of
General Conference. To the extent it exists at all, it exists in Europe;
its office is at Berne. (YB 125; Powers AE 11.)
"Staat-Korn Verlag OmbH a/k/a Hamburg Publishing House" is mere
confusion on the part of the Government. Hamburg Publishing House is a
Church publishing house under the ecclesiastical jurisdiction of
Euro-Africa Division. Saatkorn Verlag GmbH (not "Staat-Korn") is one of
several Publishing House Departments of the Hamburg Publishing House.
(YB 406.) The translation of its name is "Seedcorn Press, Inc." In the
Parable of the Sower, Matthew 13:18-23, and Luke 8:11: "Now the parable
is this: The seed is the word of God." In its secular :aspect Saatkorn
ie a Gesellschaft mit beschrankter Haftung (limited-liability company)
under German law. Obviously the Court has no jurisdiction over it.
4. Mrs. Silver
Mrs. Silver, who is in her mid-twenties, was employed by the Church June
7, 1971. She is an exceptionally talented Adventist writer, although her
formal education, consisting of about two years of college, is less than
what the Press considers adequate for a full-fledged editor. Mrs.
Silver's position is not, as stated in the Petition, p.3, that of a
"book editor"; she is an Editorial Assistant to the book editor,
although she receives the salary of an assistant editor. (Blacker AE
129.)
In 1973, Sister Silver was voted a missionary license by Pacific Union
Conference, and she is a Licensed Missionary of the Seventh-day
Adventist Church. (Her name does not appear in the 1973-74 Yearbook,
because the book went
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to press before her license was issued.
At the present time, because of her activities described below, sister
Silver is at variance with the Church, the evidence of her status as a
Missionary of the Church is being withheld by her ecclesiastical
superior for ecclesiastical reasons (Blacker AE 130, 49-52).
5. Elder and Mrs. Tobler
Elder Gustav Tobler is an Ordained Minister of the Seventh-day Adventist
Church (Tobler DS 5-6). He is a native of the German speaking region of
Switzerland, and is still a citizen of Switzerland although he worked
many years at Pacific Press. His ministry is that of a writer and editor
in the German language, in addition to preaching, teaching and
administration of the rites of the Church which are required of ordained
ministers.
At Mountain View, Elder Tobler was the editor of Zeichen der Zeit (Ger.
"Signs of the Times"), a German language edition of the Press's
pioneer publication, which
was addressed to the quite substantial populace of German speaking
Adventists in North America (Tobler DS 5.)
Mrs. Tobler is a mature Adventist worker who has served the Church for
many years. She is and for several years has been the secretary to Elder
Lawrence Maxwell, editor of Signs of the Times. Sister Tobler by
her long service and capability has attained the status of Credentialed!
Missionary, and is a minister of the Church. Whether her recent action
in becoming a plaintiff in this suit against the Church requires any
change in her status has not yet been determined ' by the ecclesiastical
authorities.
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Rolls-Royces and a bushel of rubies. Those who work for the Seventh
day Adventist Church respond to a religious vocation in exactly the same
sense as does a cloistered nun. Man's law is by its very nature not
applicable. Cessante rations legis, cessat
ipsa lex.
The 1972 amendments to Title VII concededly broadened the religious
exemption. Section 702, 42 U.S.C. 2000e-l, P.L. 92-261, Mr. 24, 1972, 86
Stat. 103. The Government will of course contend that even the broadest
reading of amended section 702 still leaves the Church subject to its
coverage. But this was not the view of either the sponsor or the chief
critic of the language of the amendment. 118 Cong.Rec. 1982 (daily ed.
Feb. 1, 1972):
"Mr. Williams. Does the Senator deal with any activity that a
religious organization might be engaged in -- any activity?
"Mr. Ervin. And activity.
"Mr. Williams. ... Let us
hypothesize a situation in which a religious order has a distillery and
produces an alcoholic beverage. Would the Senator say that business
activity of the religious order should be wholly exempt from the
provisions or would he say it cannot discriminate because of a person's
race, religion, color, or sex?
"Mr. Ervin. I think section 702 in the bill would exempt it
if it used the alcoholic beverage for the purpose of communion.
"Mr. Williams. I am certain that is true..."
If production of wine for the rite of commemorating the Last Supper of
Jesus Christ is sacramental, so is the production of books to spread His
Gospel to all nations. The two commands, "Do this in remembrance of me"
and "Go ye into all the world" are of equal stature. The Act of Congress
applies to neither. If it were
held to do so, it is plainly unconstitutional.
-19-
B. A Church Cannot Tolerate Monitoring of Its Affairs By
Civil Authority. The Basis For This Position Lies At the Heart of the
Establishment Clause
The Church does not consider the Government its antagonist; but it will
not compromise its position in order to comply with regulations that
weaken its mission. (Wilson DE 85.) Elder Maxwell's testimony in this
regard would have met with applause from James Madison, for it echoes
the Memorial & Remonstrance (Maxwell (DE 26):
"The Seventh-day Adventist Church accepts the law; it also recognizes
that there is a Constitution; it also recognizes that there is a higher
responsibility, first to God, and when a law or the manner of enforcing
that law should conflict with either the Constitution or with the
responsibilities of the Church then the Seventh-day Adventist Church
will and must abide by its higher responsibilities."
The Church claims exemption from all civil laws in all of its religious
institutions; although it seeks accommodation, it draws a line of its
own when dealing with Caesar. (Wilson DE 18 74-77, 79.) It has refused
Government grants rather than accede to racial or generic quotas in its
institutions (Wilson DE 80). This position on the Church's part is
Constitutionally sound. "... (official and continuing surveillance" of a
religious organization by a government agency is not only abhorrent to
the Church, it is the very essence of violation of the Establishment
Clause. Walz v. Tax Commission, 397 U.S. 664, 674-75 (1970).
-20-
Conclusion: The Action Should Be Dismissed With Costs, Including a
Reasonable Attorneys' Fee
The Seventh-day Adventist Church is small, as Christian denominations
go, having fewer than three million members in the world, about half of
whom are in the U.S.A. Word of something like this case and the Silver
case can spread rapidly, creating doubt and strife. The elders of the
Church are few, and they have much to do; they have already had to spend
too much of their time, and far too much of the Church's treasury, which
comes
from the tithes and offerings of faithful people, in connection with
this case. Both the pendency and the purpose of this case are at
loggerheads with the First Amendment guaranties of religious freedom.
The action should be forthwith dismissed with costs, including a
reasonable attorneys' fee, for which judgment should be entered jointly
and severally against the United States and the intervenor-plaintiffs.
A
proposed order is served and filed herewith.
Respectfully submitted
(signed)
MALCOLM T. DUNGAN
One of
Counsel
23.
Act §706 (k), 43 U.S.C.§2000e-5 (k); Van Hoomissen v. Xerox Corp., 8 EPD
# 9688 (9th Cir 1974); United States v. 0perating Engineers, 6 EPD #
8946 (N.D. Cal. 1973), per Peckham, J.; Jonson v. Georgia Highway
Express, 5 EPD # 8444 (N.D. Ga. 1972); Allen v. Braniff International, 5
EPD # 8053 (N.D. Tex. 1972). For the information of the Court, we
certify that, as of the date this brief is filed.
Mr. Noland, who in the salaried General Counsel of General Conference,
and who was admitted to practice in 1943, had expended approximately 240
hours on the case, and had incurred $1,736.17 in out-of'-pocket expense
on three trips to the West Coast; Mr. McNeil admitted 1962, 20 hours Mr.
Dungan, admitted 1949, 230 hours Mr. Quirk, admitted 1964, 194 hours. No
other evidence is needed to enable the Court to fix a reasonable fee. We
suggest $25,000.
-21-
MALCOLM T. DUNGAN
JAMES H. QUIRK
BROBECK, PHLEGER & HARRISON
111 Sutter Street, 11th Floor
San Francisco, California 94104
Telephone: 434-0900
BOARDMAN NOLAND
P. O. Box 4354
Takoma Park, Maryland 20012
Telephone: (202) 723-0800
DONALD McNEIL
RUFFO, FERRARI & McNEIL
101 Park Center Plaza, Suite 1300
San Jose, California 95113
Telephone: (418) 287-2233
Attorneys for Defendants
UNITED
STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
vs,
PACIFIC PRESS PUBLISHING
ASSOCIATION, et al.,
Defendants. |
CIV.
NO. 74-2025 CBR
AFFIDAVIT OF
NEAL
C. WILSON |
|
|
|
District of Columbia, ss
NEAL C. WILSON, being first duly sworn, deposes and
says:
l. In the Name of God. Amen. I am Neal C. Wilson, an ordained minister
of the gospel of our Lord and Saviour Jesus Christ, in the Seventh-day
Adventist Church.
2. I am Vice President for North America of the
General Conference of Seventh-day
Adventists. As such, I am the spiritual leader of approximately one-half
million
-22-
Seventh-day Adventists in North America, and administrative overseer of
all of the departments and institutions of the Church in North America,
including its publishing houses and specifically Pacific Press
Publishing Association.
3. I have reviewed a quantity of court papers in the case of Equal
Employment Opportunity Commission versus the Seventh-day Adventist
Church, including a petition, several affidavits, and what I understand
to be a proposed order. As a result of this review, I make this
affidavit for the purpose of covering nine points which bear directly on
the charges and allegations in this case:
(a) Background
(b) Meaning, nature and authority of the Seventh-day Adventist Church
(c) Relationship of Publishing Houses to the Church
(d) Why it is necessary to control all materials officially published
and distributed by the Church
(e) Reasons for not complying with Merikay Silver's request to rescind
Bruce M. Wickwire's letter to Publishing Houses
(f) Denominational position with respect to ministers and missionaries
living with
their spouses and
serving as a family unit
(g) My efforts to render temporary relief to Lorna Tobler
(h) Brief statement of the Church philosophy regarding remuneration and
the denominational wage scale.
-23-
(i) The Church's view of its relation to civil authority
4. It is alleged that there has been repeated retaliation, harassment
discrimination, et cetera, against Merikay Silver and Loran Tobler
because they took advantage of provisions of Title VII of the Civil
Rights Act of 1964 in an attempt to resolve injustices, inequity, and
differences with the management of the Pacific Press Publishing
Association. These allegations must be denied. There is no resentment or
bitterness on the part of management towards these individuals. The
primary reason for the conflict is that these workers in the Church have
been unwilling to recognize and accept the authority of the Church in
determining internal policies governing the ecclesiastical nature and
mission of their employing organization.
5. No attempt is made to invade individual rights or to prevent anyone
from living as private citizens, nor has there been any attempt to make
life difficult for workers of the Church nor to in any way hurt their
reputation or professional skills. Those employed by the Church have a
dual obligation, first as a member of the spiritual body of Jesus Christ
and second, as a servant and worker of the Church.
6. I categorically state that there is no attempt on the part of the
Church to exonerate or condone poor administrative decisions or unfair
employment practices. The point at issue is, Who shall arbitrate and
decide differences that arise between members or between employees in a
church organization and management within the structure of the Church?
It is the position of the Church that there is a proper approach, there
is recourse to justice, there are avenues of appeal to
-24-
adjudicate grievances arising with the Church.
7. The Working Policy of the General Conference of Seventh-day
Adventists which is recognized as the authoritative voice of the Church
in all matters pertaining to the work of the SDA denomination in all
parts of the world, elaborates on this point under the title "Personal
Relations and Organizational Authority." It states:
"It is recognized as fundamental that workers counsel together as to
plans and policies of work in all our organizations, the consensus, or
majority conviction, being accepted as the general working plan. Unity
in effort is more essential and fruitful in soul winning than exact
perfection in plans.
"Persons accepting employment in any branch of the work of the
denomination must do so upon the definite agreement that they will
submit to the properly constituted authority of the church in the matter
of the adjustment of all personal differences arising between themselves
and employing boards or committees, and that they shall never appeal to
any court of law for redress from such adjustments as may be made by the
denomination concerning any personal claim they may ‘make." WORKING
POLICY, North American Division, p. 36.
8. The Church is more than buildings, priests, pastors, doctrines,
beliefs, dogma, and spiritual mysteries. It is a spiritual institution
made up of spiritually minded men and women and youth with a spiritual
mission for the
-25 –
whole world and for all mankind. In the American concept the term
"church" has a number of significant meanings. It may refer to a
building dedicated for religious worship, it may refer to a single body
or group of individuals who have similar religious beliefs, or it may
refer to the entire body of Christian believers.
9 .In the Seventh-day Adventist denomination the term "church" has a
very comprehensive and broad meaning. It is used to apply to the general
organization and headquarters for Seventh-day Adventists under the name
of General Conference of Seventh-day Adventists. It also applies to all
the subordinate units engaged in fulfilling the mission of the Church.
In order to fulfill the ministry of Jesus Christ in today's society, the
Church has found it necessary to use a variety of ministries and a
number of different agencies and facilities. These are all an integral,
organic part of the Church and actually constitute the Church as it
seeks to fulfill its mission. Specifically applied to the question under
review, it is the position of the SDA church that publishing houses are
in essence the Church in its preaching and literature distribution
ministry.
9. The United States Government through its various agencies (executive,
legislative and judicial) has recognized and upheld the position thus
stated. Even though the operation of the Church and its institutions
involves employer-employee relationships, and certain activities common
also in nonreligious organizations, and even though interstate
transactions (non-commercial) are involved, the Church is none-the-less
an ecclesiastical body and a spiritual communion. By way of
illustration, the publishing houses of the Church perform certain
functions, carry on training programs, have
-26-
computer centers and other facilities; yet they are religious
institutions and are engaged in the redemptive mission of the Church.
9. Those who accept the invitation of, or who apply to work for, the
Church should feel that it is a privilege and the fulfillment of a
spiritual outreach. When a person by voluntary choice accepts to work
for the Church, he or she thereby also accepts certain personal
restrictions and limiting factors. Personal or selfish ambitions,
individual philosophy, natural and carnal feelings must be subordinated
to the unity of faith and the well-being of the Church. If one is not
happy in the restrictive atmosphere of church employment, he or she
should seek employment elsewhere.
9. In order to achieve the purposes and mission of the Church and to
deal with personnel and all the activities involved, it is absolutely
essential for the Church to have organization and laws. It is also
necessary for the Church to establish its authority in the community of
believers. The Church must have the right to screen and hire or to
discharge ministers, editors and other workers without challenge from
the State. There is no possible way for State for a court to properly
assess the circumstances, the needs, the implications, and the solutions
that become a part of the operation of a church. The State must not find
itself in a position of imposing control and thus endangering the
freedom of the Church to achieve its divine mandate.
9. Courts have warned against impermissible entanglement with the
Church. Seventh-day Adventists are grateful that the United States
Government respects the time-honored relationships established between
the State and the Church. These
-27-
Lord and Saviour Jesus Christ; and by the Spirit of Prophecy manifested
in the life and ministry of Ellen G. White (Revelation 12:17 & 19:10; Yearbook 6,
p. 19), to follow and implement the instruction and commandment of our
Lord, delivered from the Mount of Olives, when He said, "and this gospel
of the kingdom shall be preached in all the world for a witness unto all
nations; and then shall the end come." Matthew 24:15.
36. Finally, being conscious of the full weight and
burden of my responsibilities, as
the spiritual leader of approximately one-half million souls, it is my
duty to God and to my Church to reaffirm that, with all respect and
veneration for the secular laws of the United States of America duly and
justly realized and rendered, we the Church owe and must render our
first obedience and service to the Divine Law of Jesus Christ, that the
will of God may be done "on earth as it is in Heaven"; and this we
solemnly and reverently do, even should the carrying out of our sacred
obligations result, in the words of St. Paul to the Corinthians (2
Corinthians 6:4-5 [RSV] ), "in afflictions, hardships, calamities
beatings, imprisonments."
(signed)
Neil C. Wilson
Subscribed and sworn to before me this 27th day of November, 1974.
(signed)
Opal Caldwell
Notary Public
District of Columbia
My Commission Expires 6/14/75
-28-
MALCOLM T. DUNGAN
JAMES H. QUIRK
BROBECK, PHLEGER & HARRISON
111 Sutter Street, 11th Floor
San Francisco, California 94104
Telephone: 434-0900
BOARDMAN NOLAND
P. O. Box 4354
Takoma Park, Maryland 20012
Telephone: (202) 723-0800
DONALD McNEIL
RUFFO, FERRARI & McNEIL
101 Park Center Plaza, Suite 1300
San Jose, California 95113
Telephone: (418) 287-2233
Attorneys for Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
vs,
PACIFIC PRESS PUBLISHING
ASSOCIATION, et al.,
Defendants. |
CIV.
NO. 74-2025 CBR
AFFIDAVIT OF
ROBERT H. PIERSON |
District of Columbia, ss
ROBERT H. PIERSON, being first duly sworn, deposes and says:
l. I am Robert H. Pierson, an ordained minister of the gospel, and
president of the General Conference of Seventh-day Adventists, which is
the Seventh-day Adventist Church, and which was established for the
purpose of following the instruction of Jesus Christ when He said, "And
this gospel of the Kingdom shall be preached in all the world for a
witness into all nations; and then shall the end come." Matthew 24:14.
-29-
2. The document which has been filed in this case entitled "Seventh-day
Adventist Yearbook 19'73-74" is an official publication of the Church.
The Fundamental Beliefs of Seventh-day Adventists printed at pp. 5-6 of
the Yearbook are the fundamental beliefs of the Church. The Constitution
and By-laws printed at pp. 7-11 of the Yearbook are the Constitution and
by-laws of the General Conference of Seventh-day Adventists. The
remainder of the Yearbook sets out the organizational structure of the
Church, including its World Divisions, Union and Local conferences and
Missions, Educational Institutions, Food Companies, Hospitals and
Sanitariums, Publishing Houses, Periodicals, and Denominational Workers.
3. As stated in Article II of the Constitution and By-Laws, "The object
of this Conference is to teach all nations the everlasting gospel of our
Lord and Saviour Jesus Christ and the commandments of God." All of the
Divisions, Conferences, and Missions of the Church and all of its
Institutions, including Publishing Houses, were formed and their
activities are carried on for the purpose of fulfilling this object of
the Church, and for no other purpose; and all of the Divisions,
conferences, Missions, and Institutions, including Publishing Houses,
are integral parts of the Church. We believe that their work is God's
work.
4. One of the distinguishing marks of the Remnant Church, Revelation
12:17, of which the Seventh-day Adventist Church is a part, is the gift
of the spirit of prophecy. Revelation 19:10. In this respect, Ellen G.
White occupies a special place in the history and development of the
Church. She was the wife of Elder James White, one of the founders of
the Seventh-day Adventist Church and the founder of its
-30-
publishing work. Sister White was shown visions for the guidance and
instruction of the infant denomination, and wrote extensively of what
she was shown. Her works include Acts of the Apostles, Counsels to
Writers and Editors, Desire of Ages, Life Sketches, Testimonies for the
Church (9 volumes), and many others.
5. It is one of the fundamental beliefs of Seventh-day Adventists that
"The gift of the Spirit of Prophecy is one of the identifying marks of
the remnant church .... The remnant church recognizes that this gift was
manifested in the life and ministry of Ellen G.White." Yearbook 6,
p.19.
1
Pacific Press Publishing Association is owned and operated by the
Seventh-day Adventist Church, is one of its Publishing Houses, and is an
integral part of the ministry of the Church. It is involved entirely in
the production of books, magazines, and other literature for the use of
the Church in the accomplishment of its world mission to preach the
gospel "in all the world, for a witness unto all nations." Matthew
24:14.
1
The Spirit of Prophecy, as set forth by Ellen G.
White, gives counsel which the Church accepts as an important part of
its theology. Concerning the Publishing Houses it states:
"The publishing houses, the presses, instrumentalities in God's hand to
send out to every tongue and nation the precious light of truth." 4 Testimonies 595.
"Our publications have a most sacred work to do in making clear, simple
and plain the spiritual basis of our faith." 7 Testimonies 150.
-31-
voluntary gifts to accelerate the proclamation of gospel, and thus
exhibit a further demonstration of faith and commitment. Because of this
philosophy, all denominational employees in the Seventh-day Adventist
Church are regarded as church workers placed in one of two harmonious
categories and designated either as ministers or missionaries. Both
categories call for commitment and sacrifice but allow for different
functions."
Wage Scale Booklet, July l, 1974, p. 3.
"A wage scale for the North American Division based on such
considerations as education, experience, and responsibility, provides a
scale for all employees in each job classification without
discrimination on the basis of race, religion, sex, national origin or
color, with minimums and maximums expressed in percentages of the wage
factor (100% salary level) . It incorporates basic salary rates for
various categories of services with recognition of the responsibility
inherent in each position or category." Wage Scale Booklet, July
1, 1974, p. 3.
a. The church believes that committed women in the remnant church should
be given every consideration and opportunity to develop their God-given
talents. We believe also that they should be fairly remunerated for
their labors. If women are doing work traditionally done by men, they
should not be penalized financially. The Seventh-day Adventist Church
has been moving in this direction, and although some problem areas still
need attention, we are rapidly nearing the goal. The Church has made and
will continue to make needed changes. It is and has been, however, the
desire and purpose of the leadership of the Church, including myself as
its first minister for the time being, to identify problem areas and
make needed
-32-
changes in the spirit of the Master, and not in the spirit of the world
around us. In this as well as all other areas of our ministry, we
propose to be guided by God's will, rather than by the will of mankind.
We believe that by so doing, and by recognizing that here as elsewhere
we must bow to the teachings of our Lord, and not to the ordinances of
mankind, the Church will be consistent with its message, and will be
better enabled to preach the gospel to the world, and to have the gospel
message heard and understood by the world.
a. While we believe, therefore, that every effort should be put forth by
the Church and its leadership to assure that our women are fairly dealt
with, as Christians and as Adventists we are disturbed and ashamed to
see employed the kinds of approaches of activism seen in the world
outside the Church, approaches that would seek to force or coerce those
with whom women mutually serve in God's work to achieve such ends. This,
we believe, is not the Christian, the Christ-like, approach. This, we
believe, negates the very spirit and goals of Christian
ethics and, if they were to accept or agree to be bound by it, the
leadership of the Church would be involving themselves in unchristian
approaches to problems which, in our belief, demand Christian solutions,
not worldly ones. 12/ It is the belief of the Seventh-day Adventist
Church that misunderstandings and disputes among Church members, or
between the Church and its members, are to be decided within the Church
according to the doctrine and discipline of the Church. The following
quotations from the writings of Ellen G. White indicate the position of
the Church regarding the settlement of misunderstanding and disputes:
-33-
"ignoring the authority of the church they show contempt for God, who
gave to the church its authority." 5 Testimonies, 242,243.
13. The orders of ministry in the Seventh-day Adventist Church include
Ordained Ministers, Credentialed Missionaries, Licensed Ministers,
Licensed Missionaries, and Credentialed Literature Evangelists. All of
these are ministers of the Church, and charged by God with carrying on
His work. The policy of the Church with respect to Credentials and
Licenses, and the method of issuing the same, together with certain
other aspects of Church policy, are set forth at pp. 76-87 of the
General Conference's Working Policies, true copies of which are
attached hereto and marked "Exhibit A."
14. An ordained minister is authorized and expected to preach the gospel
of Our Lord Jesus Christ, and to administer the sacraments, whether or
not he is in a pastoral assignment, or whether he is also a physician, a
teacher, an editor, or an administrator. Ordained ministers have
theological education, which today is given at a Seventh-day Adventist
Seminary, in addition to whatever other education and training they
have. Licensed ministers are usually seminarians, or others, who look
forward to ordination upon completion of their education and training.
Credentialed missionaries are ministers of the Church, in remunerative
employment with the Church or its institutions, and who have positions
;which require experience and responsibility. Licensed missionaries,
also minister of the Church, are persons in like employment who have not
yet attained the stature of credentials. Literature evangelists are
those engaged in the colporteur ministry. As before stated,
-34-
authority except God's. If we were to be ordered by civil authority to
hire or not to hire a certain person, to publish or not to publish a
certain article, to permit a person at variance with the Church access
to the columns of the Church's periodicals, or to give notices to its
employees in language prescribed by a civil authority, it would be
necessary in obedience to God's law to refuse compliance, even if such
refusal resulted in subjecting the servants of God to "afflictions
hardships, calamities, beatings, imprisonments." 2 Corinthians 6:3-5
(RSV).
Subscribed and sworn to before me this 30th day of November, 1974
[signed]
Beulah A Peterson
Notary Public
District of Columbia
STATE OF FLORIDA
[LS]
-35-
CHRIS ROGGERSON
F CANCINO
WM. KEITH MacLEOD
JOHN M. REA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1390 Market Street, Suite 1010
San Francisco, California 94102
Telephone: (415) 556-4261
Attorneys for Plaintiff Commission
JOHN KURT BRADFORD, ESQ.
1320 Bayport Avenue
San Carlos, California 94070
Telephone: (415) 591-8207
Attorney for Intervenors
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff
and
MERIKAY SILVER and LORNA TOBLER,
Intervenors,
v.
PACIFIC PRESS PUBLISHING ASSOCIATION,
et
al.,
Defendants. |
CIVIL ACTI0N
NO.
C-74-2025CBR
AFFIDAVIT OF LORNA TOBLER |
LORNA TOBLER, being first duly sworn, deposes and says:
1. I am a woman employee of PACIFIC PRESS PUBLISHING ASSOCCIATION
(hereinafter "PPPA"), Mountain View, California. I presently work in the
job category of editorial secretary, and I have been employed at PPPA
since July 1, 1960.
2. This affidavit is submitted in support of the Petition and Motion for
Preliminary Relief by the Equal Employment Opportunity Commission
(hereinafter "The Commission"), and Intervenors MERIKAY SILVER and LORNA
TOBLER, and opposition to defendants' Motion for Summary Judgment and
Dismissal.
3. I
have been employed at PPPA for nearly 15 years, having commenced my work
there on July 1, 1960. From July, 1960
-36-
111. During the 15 years I have worked at PPPA, I have attended many
events in the PACIFIC PRESS auditorium (characterized by defendants as a
"chapel" [AE Blacker 5:'2-9]) other than religious meetings, such as
travel film showings and parties. The last such film showing was on
February 16, 1975, as shown by the admission ticket attached hereto as
Ex. "PP." An entertainment program scheduled to take place there on
March 1, 1975 is shown by the advertisement I received from the sponsors
of "Phun-nite" and is attached hereto as Ex. "QQ." I have attended many
nonreligious Monday morning meetings for employees (referred to as
"chapel exercises" by defendants (AE Blacker 5:2-9). A recent such
Monday morning meeting was the eighteenth annual business meeting of the
Miramonte Federal Credit Union held January 27, 1975, as announced in
PPPA house organ The Informer of
January 20, 1975, attached hereto as Ex. "RR."
112 . As a practicing Seventh-day Adventist, I leave my work at PPPA at
1:30 p.m. each Friday in order to prepare for religious worship and
Sabbath observance beginning at sunset Friday and continuing until
sunset Saturday. In harmony with
the teaching of my church, I would consider it a violation of Sabbath
observance to continue my regular work at PPPA during the hours of the
Sabbath.
113. During the course of 25 years which I have spent working and
studying in Adventist-related institutions, I have never been called a
pastor or elder, I have never been ordained, I have never performed a
baptismal or marriage ceremony or
presided at the Lord's Supper, I have never served as a ministerial
intern or gained a Bachelor of Divinity.
114. As a lifelong Seventh-day Adventist who has attended Adventist
secondary school and college, worked in Adventist-related institutions
for 25 years, read widely Adventist books and periodicals, worked as
editorial secretary
-37-
for an Adventist magazine, and is married to an Adventist minister, I
have never seen or heard the term "first minister" (OBE xii, 15, 17, 38,
45) applied to a president of the General Conference or used in any way
whatsoever. I have frequently heard the term "hierarchy" used among
Adventist when reference is made to the Roman Catholic system, of which
I have always been taught that Adventists strongly disapprove. I have
never heard the term "hierarchy" used to describe Adventist ministers as
it is done in defendant's brief (OBE pp. 14, 44, 97), and I find it
strange and contradictory to all I have ever learned in Adventist
schools and churches. I have never heard of Adventist religious "orders"
or "orders of ministry" (OBE 18, 47) and have never had any such "order"
conferred upon me or upon any Adventist I have ever known. Among
Adventists, I have always heard this term used to apply to Roman
Catholicism, which I have been taught to reject. I have never heard any
employee of Adventist related institutions, or any Seventh-day Adventist
at all, compared to "a cloistered nun" (OBE 90) and believe such concept
to be alien to Adventist thought and practice. I have never heard of any
belief that everything Adventist ministers or administrators do is
"sacramental" (OBE 88). I have never heard that the Seventh-day
Adventist Church or any of its ministers are exempt from civil law which
agrees with Adventist teachings. I have never heard it said among
Adventists that "the church claims exemption from all civil laws" (OBE
104). I have frequently read in Adventist publications and heard in
Adventist churches strong support for law enforcement.
115. As a practicing Seventh-day Adventist from my youth, I attend
church services on Saturday in my own congregation, the Mountain View
SDA Church, which meets in a church sanctuary dedicated to the purpose
of holding divine worship only. According to my personal belief and the
teaching of my
-38-
Adventist teaching and that his conduct toward me, toward his work, and
toward his church has been courageous and devoted. I swear under penalty
of perjury that the foregoing is true and correct.
Dated:
February 18, 1975, at San Carlos, California.
(signed) LORNA TOBLER,
Intervenor
Subscribed and sworn to
before me on February 18, 1975
(signed)
James C. Moraes
Notary Public in and for said County and State
-39-
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Plaintiffs,
vs.
PACIFIC PRESS PUBLISHING ASSOCIATION, et al.,
Defendants. |
Civ.
No. 74-2025 CBR
REPLY BRIEF FOR DEFENDANTS
IN
SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT |
Introductory
Despite the welter of paper which burdens the file, only a few questions
emerge which require decision. Hence we ignore the multitude of
irrelevancies in plaintiffs' affidavits and briefs -- extending to 735
pages -- and answer in stride those assertions that seem to deserve a
reply, however brief.
The questions which we see presented for decision by the Court are only
these:
1. Is there a "case or controversy" within the accepted meaning of the
Judiciary Article of the Constitution, where any decision the Court
might make is liable to be nullified at any time by ecclesiastical
proceedings over which the Court admittedly has not the slightest
jurisdiction or control?
______________________
Note: Concerning terminology and notation we adopt, mutatis mutandis,
the Note at pp. xi-xii of our Opening Brief ("OB" dated December 4,
1974. Plaintiffs' briefs are cited "EEOC Br." and "I.P. Br."
-40-
6. What is the standard for determination of questions 3, 4 and 5
above? That is to say, is the Court to examine, dissect, and evaluate
defendants' assertions as to their religious beliefs (particularly where
they are demonstrated beyond any possibility of quarrel not to have been
concocted post litem motam, but are based upon Holy Scripture and
the teachings of the church's Prophet, who died in 1915), or must the
assertion of those beliefs be accepted at face value by civil courts in
determining a controversy within a church? For reasons of coherence, we
take up the remaining few factual and legal questions in roughly the
same order as we presented them in our Opening Brief. 1
Statement
I. Organizational Structure of the Seventh-day Adventist Church;
Authority of General Conference with Respect to the Institutions from an
ecclesiastical-historical standpoint, there are numerous forms of church
organization, which are described variously as presbyterian (which
connotes governance by the
priesthood), or episcopal (which connotes governance by the bishops of
the church), or papal (which connotes governance by a sole chief
bishop), or congregational (which connotes governance by individual
local church groups).
________________
1. We stand on our Opening Brief as well as this Reply, while noting
that a number of the points made there are completely omitted here. That
is only to spare the Court repetitious argument on matters as to which
we think the answering briefs contain an obviously insufficient answer,
or no answer at all.
-41-
These distinctions are without legal significance. From a legal
standpoint, as we show post, part IIB of the Argument, there are
but two sorts of church organization which carry with them significant
legal consequences: the "congregational", and all others, which in law
are called "representative", or "hierarchical". 2
The plain and undeniable fact is that the Seventh-day Adventist Church
is most assuredly not a "congregational" one (although it contains
elements of congregationalism) but is clearly of the "representative" or
"hierarchical" variety.
As stated in the Seventh-day Adventist Church Manual, p. 48:
"The General Conference is the highest organization in the
administration of our worldwide work, and is authorized by its
constitution to create subordinate organizations to promote specific
interests in various sections of the world; it is therefore understood
that all subordinate organizations and institutions throughout the world
will recognize the General Conference in session, and the Executive
Committee between sessions, as the highest authority, under God, among
us. When differences arise in or between organizations and institutions,
appeal to the next higher organization is proper till it reaches the
General Conference in session, or the Executive Committee Autumn
Council. During the interim between these sessions the Executive
Committee shall constitute the body of final authority on all questions
where a difference of viewpoint may develop, whose decision may be
reviewed at a session of the General Conference or an
_____________________
1. Although it is true that
there was a period in the life of the Seventh-day Adventist Church when
the denomination took a distinctly anti-Roman Catholic viewpoint, and
the term "hierarchy" was used in a pejorative sense to refer to the
papal form of church governance, that attitude on the Church's part was
nothing more than a manifestation of widespread anti-popery among
conservative Protestant denominations in the early part of this century
and the latter part of the last, and which has now been consigned to the
historical trash heap so far as the Seventh-day Adventist Church is
concerned.
-42-
"Each unit has a large amount of autonomy. Local congregations elect lay
elders, deacons and other officers; the local conference office
supervises all local pastoral and evangelistic work and relations and
pays all pastors and other workers in its territory from a central
fund. Theirs is a highly representative form of government."
(Mead, Handbook of Denominations in the United States 21-22 (4th
Ed. 1965).)
The official position of the Seventh-day Adventist Church is that its
government is a blend of congregational and Presbyterian, with elements
of methodism, but can best be described as "representative". 10 SDA
Encyclopedia, s.vv . Church Government, pp. 263-64; Organization,
Development of, In SDA Church, id. p. 929; Church Manual 46-47;
"The representative form of church government is that which prevails in
the Seventh-day Adventist Church."
Pursuant to the General Conference Reorganization of 1901 (SDA Encyc.
937-39) the General Conference Committee was greatly expanded, and the
leading independent organizations within the denomination -- including
publishing -- became branches or "departments" of the General
Conference. (Id. at 938.) Each departmental secretary is a member
of the General Conference Committee, and his department acts as liaison
between the institutions (schools, publishing houses, medical
institutions) and the administration of General Conference. (Id.
at 438.)
Because of its size and importance, Pacific Press as assigned, not to a
local or union conference, but directly to General Conference, and is
known as a "General Conference institution." (L.TobIer AE, Ex.SS.) The
administrative overseer of the Press is Elder Wilson, Vice-President for
North America of General Conference. (Wilson AE 12.)
-43-
As shown by the affidavit of Elder Blacker (Blacker AE 13, 14, 18),
members of the General Conference Committee are ex officio members
of Pacific Press, and on dissolution of Pacific Press its assets devolve
upon General Conference. Since the Committee has 350 members, it holds
the majority of the voting power, and accordingly has power to revise
the by-laws, to dismiss the board of directors, to change management and
editors, and in general to control the affairs of Pacific Press. (par.
14) Again, the administrative official who exercises this power directly
on behalf of the General Conference Committee is Elder Wilson. Elder
Blacker concludes (Blacker AE par.18),
"Thus, the General Conference has control over all aspects of Pacific
Press both:
"(a) pursuant to secular norms of corporate control, through possession
of a majority vote of it's members; and "(b) through the hierarchy of
the Seventh-day Adventist Church ....
It follows that the General Conference Committee has firm control over
Pacific Press; and it follows, too, that it is untrue to say that
Pacific Press is free to follow or not, as its own board sees fit, the
Wage Guidelines of General Conference. The facts are, simply, that when
Pacific Press was laggard in complying, and General Conference learned
of it, it very quickly called the Press to heel, and soon replaced its
General Manager. (Wilson DE 11, 14; Blacker AE) Intervenor plaintiffs
blow hot and cold with respect to the nature of General Conference and
its relationship to the institutions of the Church. They recognize but
one aspect of General Conference (I.P. Br. 10) that is to say, its
-44-
existence as a secular corporation for the purpose of holding property
and the like. They recognize it as the "parent of subsidiaries" such as
a food company, radio and television stations, an insurance company, and
a wood and furniture sales company, 5 but
they decline to recognize it as the owner and overseer of Pacific Press,
which it assuredly is. And at p. 11, they distinguish between "General
Conference" and "General Conference In Session" and in this they err in
two directions.
First, the phrase "General Conference In Session" is not an entity or an
organism but is one facet of the Church (the most important and
powerful, of course, but still only one facet of the phrase "General
Conference"), and they fail to recognize that between the quadrennial
(now quinquennial) sessions of the delegates in General Conference, the
Executive Committee wields all of the powers of the Church,
excepting only two: the power to alter the structure of the Church and
the power to alter its doctrine. Everything else, without exception,
which can be accomplished in General Conference when it is in its
infrequent sessions can similarly be accomplished by the General
Conference Committee between those infrequent sessions. (General
Conference Working Policy, p. 36; cf. Wilson AE para 7: the Working
Policy "is recognized as the authoritative voice of the Church in all
matters pertaining to the work of the SDA denomination in all parts of
the world.")
__________________
5. The Harris Pine Mills was donated, as a going concern, to the Church
by the Harrises in 1951. It is described as a "taxable wood-products
manufacturing corporation" which "is owned and operated by the General
Conference for the benefit of SDA work." SDA Encyc. p. 498. All the
other entities mentioned were organized for denominational purposes.
-45-
insisting that the General Conference Committee is without
ecclesiastical authority and represents solely a "small group of men who
constitute administrative personnel" and nothing more. To the contrary,
the Church Manual clearly states at p. 48, "that all subordinate
organizations and institutions throughout the world will recognize the
General Conference in Session, and the Executive Committee between
sessions, as the highest authority under God, among us. When differences
arise in or between institutions and organizations, appeal to the next
higher organization is proper until it reaches the General Conference in
Session or the Executive Committee Autumn Council. During the interim
between these sessions the Executive Committee shall constitute the body
of general authority where all questions may be reviewed at a session of
the General Conference or an Autumn Session or the Executive Committee."
This clearly shows that the Church governs by a method of organization
which in Seventh-day Adventist terminology is "representative", and
which embraces exactly, from a legal standpoint, the same kind of
organization (in opposition to "congregationalism") as is embraced by
the term "hierarchical". In their zeal to deny the organization and
structure of the Seventh-day Adventist Church, in order to be enabled to
deny the authority of the General Conference Committee, the
intervener-plaintiffs fall into the error of teaching false doctrine,
which is contrary to the doctrine and practice of the Church. Thus Mrs.
Tobler swears (Tobler AE para.114, p. 39, lines 4-11):
"I have frequently heard the term 'hierarchy' used among Adventist[s]
when reference is made to the
Roman Catholic
-46-
system, of which I have always been taught that Adventists strongly
disapprove. I have never heard the term 'hierarchy' used to describe
Adventist ministers as it is done in defendants' brief ..., and I find
it strange and contradictory to all I have ever learned in Adventist
schools and churches."
In several ways this illustrates the dangers incurred by an individual
church member who presumes to deny the authority of the duly constituted
officials and governing bodies of the Church. In the first place, it is
true that for a period in its
history, the Seventh-day Adventist Church had an aversion to Roman
Catholicism and especially to the papal form of church government -- an
aversion shared by virtually all Protestant denominations. (See
Pittenger, What Is an Episcopalian, in Rosten (ed.), Religions in
America 68, 69 (1963) ) While, however, Adventist doctrine continues to
teach that church government by one man is contrary to the Word of God,
it is not good Seventh-day Adventism to express, as Mrs. Tobler has
done, an aversion to Roman Catholicism as such. (SDA Encyc. Ecumenism,
pp. 361-63.)
The term "hierarchy" or "hierarchical" has no such adverse connotation
in Seventh-day Adventist theology as Mrs. Tobler suggests. (See SDA
Encyc. 263-64.) It is, indeed, synonymous from an etymological
standpoint with "Presbyterianism", that is to say with government by the
priesthood; and the official expression of the Seventh-day Adventist
Church is that its form of government closely corresponds to the
presbyterian system. Of course, neither the Seventh-day Adventist Church
nor the Presbyterian Church in the United States is governed
-46b-
February 24, 1975, because it has a straitly-fixed duration, and because
final decision is at hand. We prefer an orderly and seemly progress to
decision over a helter-skelter approach. An indefinite or permanent
interference, however, by secular authority with decisions as to whom to
hire, whom to retain, what editorial assignments shall be made, in a
Church publishing-house, is something that the General Conference of
Seventh-day Adventists could not accept or accommodate to. In the event
of such an order, it would be compelled to follow St. Paul's admonition
as outlined in 2Corinthians 6:3-7, and the witness of Ellen G.
White in 6 Testimonies 394-95.
Defendants should have judgment, with costs and a reasonable attorneys'
fee.
Respectfully submitted
MALCOLM T. DUNGAN
JAMES H. QUIRK
BOARDMAN NOLAND
By (signed)
Malcolm T. Dungan
Of Counsel for Defendants
March
3, 1975
-47-
Reprinted by Permission of the ADVENTIST REVIEW
When
the Church Is Taken to Court
The General Conference president reports to the
church on current litigation involving the denomination.
Report to the church By ROBERT H. PIERSON
AT
PRESENT the Seventh-day Adventist Church is the defendant in several
lawsuits. The results of these court cases could have rather
far-reaching effects on the church. Upon the advice of our attorneys we
have refrained from reporting these court cases in the public press
while the cases are pending. We have made statements in public
gatherings on occasions, but for legal reasons have nor released
information to the public press on the issues involved.
There
appears to be a difference between the interpretation of the United
States Government and the Seventhday Adventist Church with regard to
provisions of the First Amendment, which reads, "Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances."
Three
areas of our church program are involved in the current cases. All three
of these issues are vital to the life and operation of our church. We
believe that we are protected by the First Amendment in each of the
three areas. We do not believe that the church is above the law or that
the Seventh-day Adventist Church is not subject to the laws of this
country, as has been suggested in the public press. On the contrary, it
is because we feel that basic issues of religious liberty, assured under
the First Amendment, are involved that we are seeking legal redress. We
feel that not all laws apply to the church, since the First Amendment
offers certain protections to the church.
The
three sensitive areas concerned in the present suits are:
l. Does
the church have the right to determine who shall and who shall not
author the books and articles printed by our publishing houses? Although
freedom of the press per se has not been questioned by the court in any
of the current suits, our right to refuse to publish manuscripts
submitted by persons under some circumstances has been challenged. Some
believe that such a position is not consonant with the provisions of the
First Amendment. We believe the church has the right to publish or not
to publish materials submitted for publication not only on the basis of
the acceptability of the manuscript but also on the basis of the
relationship of the author to the church, providing such material is not
in violation of law.
2. Does the church have the
right to structure its own system of remunerating its workers, or does
the State control this important factor in church administration? Since
its inception, the Seventh-day Adventist Church has structured its wage
scale on what we have termed a modest "living" income. Our wage scale
brochure puts it this way: "The philosophy of this wage scale is
predicated upon the fact that a spirit of sacrifice and dedication
should mark God's workers irrespective of the position they hold or the
department they represent. The work of the church, including every
denominational organization, is a mission to which lives are dedicated
rather than a business or commercial venture. The church wage scale does
not always compensate its dedicated workers in monetary units
commensurate with their talents, accomplishments, and contributions, but
does provide workers with a modest living income, which gives
recognition of responsibilities borne, preparation undertaken,
professional attainment, previous experience, and years of service." .
-- Wage Scale, effective July
I, 1976, pp. 2, 3.
Areas
of the traditional plan for remuneration of workers followed by the
church for many decades have been challenged by Government agencies, and
some of the current court cases involve questions of remuneration, with
the church as the defendant.
This
"living" wage often provides an income less than the person would
receive for comparable employment in the community. We believe that
service in the cause of God is a privilege and that part of the
remuneration we receive is the knowledge that we are working for God and
that by accepting a lower salary we help the church's funds to go
further so that more workers can be employed, and the work of the church
will go more rapidly.
Until
more recent years this scale provided that the "head of household" (the
wage earner in a family, in contra-distinction to a worker with only
himself/herself to support) should receive a higher remuneration than a
singe worker with no family responsibilities. It is also true that in
the past in some cases women received a lower wage than a man in the
same position - a practice widespread outside the church, as well. The
church is now in compliance with the law on both of these points. There
is no head-of-household differential, and a woman holding the same
position and doing the same work as a man receives the same salary and
benefits pertaining to the post.
The
third question involved in present litigation is:
3. Does
the church have the right to employ whomsoever it will to carry on its
work in institutions and other areas of its ministry? It is the
contention of church leadership - and we believe our general church
membership supports us in this position - that to operate truly
Seventh-day Adventist schools, health-care institutions, and publishing
houses, staffing by committed Seventh-day Adventist Church members is
essential.
It is
also the contention of the Seventh-day Adventist Church - as indicated
by a General Conference session action in Vienna - that the institutions
of our church are the church carrying out her various ministries. Our
publishing houses are the publishing arm of the church carrying out her
literature ministry. Our schools are the educational arm of the church
ministering to the educational needs of our church and young people. Our
health-care institutions are the medical arm of the church ministering
to the needs not only of Seventh-day Adventists but of all who need
health and healing, regardless of their national, cultural, racial, or
religious backgrounds. Our institutions in their operations are indeed
the Seventh-day Adventist Church in action on all fronts of its
spiritual, philanthropic endeavor.
The Seventh-day Adventist Church has not initiated any of the current
court cases. We are defendants in every case. We do
not like to be involved in court cases. We believe there are better ways
of settling differences in the church, but sometimes a situation
develops or deteriorates to the extent that we have no other course than
to defend the church when it is sued in court.
Robert H. Pierson is president of the General
Conference.
6 (302) R&H, MARCH 24, 1977
-48-
As
stated above, the Seventh-day Adventist Church per se does not feel that
it is above the law or that it is not subject to city, State, or Federal
laws. Seventh-day Adventists are traditionally lawabiding citizens, and
the church counsels our members to keep the laws of the (and. "Let every
soul he subject unto the higher powers. For there is no power but of
God: the powers that be are ordained of God" (Rom. 13:1). "It is our
duty in every case to obey the laws of our land, unless they conflict
with the higher law which God spoke with an audible voice from Sinai,
and afterward engraved on stone with His own finger."--Testimonies,
vol. 1, p. 361.
The
vast majority of civil laws in the United States have nothing to do with
religion or with the church. As Seventhday Adventists we support the
legal system that is set up to govern the nation. It is unseal indeed
when we take issue with the ordinances or the directive; of the
Government.
The
General Conference has developed guidelines that govern our church-State
relationships. Here is a review of these guidelines in principle:
1.
In case, where the church feels that Government demands are violation
of a plain "Thus with the Lord" we would he prepared to pursue all
possible civil remedies to the fullest extent. We would go to the
highest court, as well as to the legislative and executive branches of
the Government, if necessary, to seek redress. If relief were denied in
a matter pertaining to conscience, the church might be forced to take a
position that could be interpreted as being civilly disobedient.
Determining what is a "Thus with the Lord" would be by properly
constituted church bodies, such as the General Conference Committee,
Annual Council, the General Conference in session.
2.
Where the church feels Government violates the establishment,
free-exercise, due-process, equal-protection, or any other clause in the
U.S. Constitution, it would state clearly to both Government and church
members why it differs with Government. If the church subsequently fails
to convince Government and/or the Supreme Court, it would thereafter
obey the law, adjusting the challenged church program or terminating it.
3.
When the church feels Government is operating beyond its rightful
sphere, or where the church differs with Government its interpreting a
statute, where it dislikes a law or stands to suffer a disadvantage or
loss on the grounds of public policy or cost, the church would state
clearly to both Government and church members why it differs with
Government. If the church subsequently fails to convince Government, it
would again have to decide whether to adjust the challenged church
program or to terminate it.
4.
When the church has problems outside the United States, the above
system perhaps could he adapted to almost every country. Where there are
constitutions and/or laws protecting the religious rights of citizens
and institutions, the approach would be substantially as outlined above.
In a country where legal options are more limited, the approach would be
reduced to circumstances as outlined in No. 1: the church would obey the
Government except where demands violate a "Thus with the Lord."
We
believe that Adventist church members generally will agree that these
guideline, represent a reasonable approach to church-State relationships
and that they underscore our desire to be law abiding citizens
supportive of Government in every respect. Only when matters of
conscience conflict with legal requirements would we be unable to comply
fully with the laws of the land. We believe that the U.S. Government
stands for freedom of worship, and we pray it will never ask us to do
things that would be in open conflict with our conscience.
There
is one other area in recent court procedures that has concerned a few
who have read the affidavits filed by church leaders. Apparently, there
was fear on the part of some that the use of first
minister and spiritual leader as
applied to two General Conference officers in two affidavits meant that
a new form of church polity was aborning. These terms were initiated by
attorneys who are not Seventh-day Adventists. They were using language
they no doubt felt would be well understood in the courtroom. If we
erred in accepting counsel in this area, we will try to do better next
time. In the Adventist ministry we do not have various "orders," with
some "outranking" others. It is true that some have larger parishes than
others, but basically we are all in this great cause together, and we
would not have it any other way.
The
use of the term hierarchical
system by attorneys also disturbed a few people. Hierarchy was
selected by the lawyers, because of its legal significance in defining a
church organizational structure with different levels of administrative
authority such as our local churches, Iocal conferences, union
conferences, divisions, and the General Conference, in contrast to a
purely "congregational" form of church government that has no central
conference administrative system and functions simply as a single
independent church unit. The Seventh-day Adventist Church has adopted
and continues to maintain a "representative" form of church government,
which in an organizational context is probably closer to the
hierarchical organization than to the congregationalist.
The
system of Seventh-day Adventist polity has not been changed nor could it
be changed other than by a vote of the delegates attending a General
Conference quinquennial session. I know of no steps being taken-nor have
any ever been mentioned-that would revise or change the wonderful,
God-given organization that has served this church effectively and
efficiently for so many decades.
Today
the church is passing through one of the most critical periods in its
history. This is a time when "the dragon" is "wroth with the woman" and
has declared war on "the remnant of her seed" (Rev. 12:17). There are
troubles and problems in almost every country where our work is carried
on. In some lands there is overt war or political turmoil. In others we
have workers in prison, our schools have been taken over by the
Government, our funds have been frozen, our members are restricted in
worship. We should not he surprised when these conditions obtain. They
are signs of the early triumph of the Advent Movement. Before things get
better they will get much worse. Bible prophecy declares it. Current
events already confirm it.
In
such days your leaders on even "level" of administration--from the local
church through the General Conference--need your understanding and your
prayers. Like you, we are only human. We may make mistakes, but we do
much earnest praying and give careful, thoughtful consideration to the
decisions made. We sincerely endeavor to stay close to the counsel given
us in the Bible and the Spirit of Prophecy. As far as is humanly
possible we want to carry on God's work in God's way. We want to see His
work finished and the Saviour return so that very soon we can all be
with Him in that land He has gone to prepare.
-49-
RESPONSE TO PIERSON
By SOURCE within the CHURCH
Editor's Note:- It was back in 1977 before Elder G. H. Pierson stepped
aside as President of the General Conference that he wrote the article
on the two preceding pages to explain the why of the litigation in which
the Church was involved with the Federal government at that time. Some
people who were in a position to know the facts recognized the
explanation given by Elder Pierson was an end run around the truth, and
believed it should be answered. It was decided to send a response by
personal mail to every SDA worker in North America. The cost became a
prohibitive factor. "The Response to R. H. Pierson's Report to the
Church" remained - though written - uncirculated. We include this
analysis here so that the laity might understand that "explanations"
coming through the official organ of the Church - THE ADVENTIST REVIEW -
are no more reliable now than past explanations have been. The author of
this "Response" has asked that he be identified only as "a source within
the denomination."
In his
report to thee church titled, "When the Church Is Taken to Court,"
(REVIEW, 3-24-77, pp. 6-8) General Conference President Robert H.
Pierson seeks to calm the troubled waters of the faithful members of the
church by crying, "Peace! Be Still!" But there are times when such an
instruction is inappropriate.
Now is
such a time. Now is rather a time to "let judgment run down as waters,
and righteousness as a mighty stream." Amos 5:24. We are faced here with
a General Conference President who is telling the Adventist people one
thing through the REVIEW, while through affidavits and General
Conference attorneys, he is telling the courts of the land, and thus the
public press, something dissimilar.
In the
REVIEW he says, "We do not
believe that the church is above the law or that the Seventh-day
Adventist Church is not subject to the laws of this country, as has been
suggested in the public press." Through his attorneys he says, "The
Church claims exemption from all civil laws in all of its religious
institutions."
(The
above quotes appears on p. 104 of a brief prepared for the General
Conference officers by Malcolm T. Dungan, James H. Quirk, Donald McNeil,
and Boardman Noland, a General Conference staff attorney and a
Seventh-day Adventist. It was submitted as part of the Opening Brief for
Defendants in Civil Case No. 74-2025, EEOC vs PPPA and General
Conference, to Judge Charles B. Renfrew in the U. S. District Court in
San Francisco. This same assertion is repeated word for word in Civil
Case No. 75-1792 before the U. S. Court of Appeals for the Ninth Circuit
Court in a Brief for Appellants on p. 77, submitted July 6, 1975)
In the
same appeals brief appear the following claims:
"We insist that in doing its holy work, the church
is free to ignore, even to to flout, measures [laws] which bind all
others." (p. 78)
-50-
"As an organized religious denomination the
Seventh--day Adventist Church insists that it is 'wholly exempt' from
the cognizance of Civil Authority, and that entanglements, practical
exceptions, and 'reasonable adjustments' [in order to comply with the
law] are not to be tolerated." (p. 80)"
Contrary to what Elder Pierson tell us in the REVIEW, we see that the
public press did not misreport the evidence available to it in
publishing church claims of exemption from the laws of this country. The
fact is that they found this evidence in the public record, placed there
by attorneys carrying out the directives of the General Conference
officers.
The
Legal Issue
Elder
Pierson makes this statement: "Until
more recent years this scale [the traditional plan for remuneration
of church workers] provided that
the 'head of household' (the wage earner in a family, in
contradistinction to a worker with only himself/herself to support)
should receive a higher remuneration than a single worker with no family
responsibilities."
This
statement is unfortunately misleading in two important, basic ways. 1)
By applying the term "herself" equally with "himself" to "head of
household," Elder Pierson implies that a female sole-family-support had
as good a chance as a male sole-family-support to receive "head of
household" benefits. Such was not the case. A great many God-fearing,
self-sacrificing women church workers are sole-family-support. (being
widowed or divorced with dependent children, or married to invalid
husbands). Yet exceedingly few of these women ever received "head of
household" benefits down through the years. 2) Just as misleading is
his description of the "head of household" as "the wage earner in a
family, in contradistinction to a worker with only himself/herself to
support." This implies that the considerable "head of household"
remuneration was based on need. Again such was not the case.
As a
general practice church institutions simply defined "head of house" as a
"married male" and let it go at that. Thus, the institution paid "head
of household" remuneration to all married male employees whether or not
they had dependent children, whether or not their wives also earned
their own incomes (even larger than their husbands), whether or not
these men also received (in some cases huge) extra forms of income (such
as subscription book royalties, investment income, etc.) Yet to
extremely few woman employees did these institutions pay "head of
household" remuneration, whether or not they were widowed or divorced
with dependent children, whether or not they had to support invalid
dependent relatives (including husbands), whether or not they were
putting husbands through school (as was the case with Merikay Silver of
the Pacific Press).
Church
remuneration policy has never been based on need. In her day Ellen G.
White spoke out against sex discrimination in remuneration: "If
a woman is appointed by the Lord to do a certain work, her work is to be
estimated according to its value." Not paying women is "making
a difference, and selfishly withholding from such workers their due." And, "When
self-denial is required... do not let a few hard-working women do all
the sacrificing. Let all share in making the sacrifice. God declares, I
hate robbery for a burnt offering." Evangelism, pp. 491-92
Now
Elder Pierson asserts that "there
is no head-of-household differential, and a woman holding the same
position and doing the same work as a man receives the same salary and
benefits." If this is an assertion that there is no sex
discrimination in remuneration, it is doubtful. It is not reasonable to
conclude that Federal government would wage protracted legal battles
against church institutions
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if
these institutions were complying with laws against sex discrimination.
Excuses for Going to Court
Elder Pierson nukes a point cut of the fact that,
"The Seventh-day Adventist Church has not initiated any of the current
court cases. We are the defendants in every case." This
he seems to offer as a claim to virtue and honor. Since, he implies, we
do not believe in taking someone to court, being sued is somehow more
virtuous and honorable than suing. But this is not always the case. In
the instances here discussed the Federal government has determined that
the officers of the Pacific Press, the Pacific Union, and the General
Conference have been violating the Civil Rights Act and the Fair Labor
Standards Act.
To
claim that we are the defendants, we are the accused, is
no defense. It is no denial of wrong doing. It is no example of virtue
and honor. To claim that we are defendants, we are the accused,
is no more virtuous or honorable that the thief's protest that he is
the defendant, he is the accused. Certainly there is no
honor, no virtue, and nothing praiseworthy in such a claim. To offend is
less honorable than to seek remedy for an offense.
"Sometimes a situation develops or deteriorates," Elder
Pierson writes, "to the extent
that we have no other course than to defend the church when it is sued
in court." He here refers to "the current court cases" in which the
Federal government is suing the Church and some of its institutions for
violating Title VII of the Civil Rights Act of 1964, a law of more than
a dozen years standing, and the Federal Fair Labor Standards Act,
amended in 1972 to include teachers. This has given us plenty of time to
clean up our remuneration practices. Where, then, is the deterioration
that makes costly court proceedings inevitable?
If we
were violating child labor laws, fire ordinances, health codes, and
safety regulations in our institutions and were sued by the Federal
agencies involved, would "we have
no other course than to defend the church when it is sued in court?" And
now that we have been found by the government to have been violating
anti-sex discrimination laws, do "we
have no other course than to defend the Church when it is sued in
court?" The answer is that we do have another course. We can obey
these laws as the Word of God requires:
"Submit yourselves to every ordinance of man for
the Lord's sake: whether it be to the king as supreme; or unto
governors, as unto them that are sent by him for the punishment of
evildoers, and for the praise of them that do well. For so is the will
of God, that with well doing ye may put to silence the ignorance of
foolish men." I
Peter 2:13-15
"Let every soul be subject unto the higher powers.
For there is no power but of God: the powers that be are ordained of
God. Whosoever therefore resisteth the power, resisteth the ordinance of
God: for they that resist shall receive to themselves damnation. For
rulers are not a terror to good works, but to the evil. Wilt thou then
not be afraid of the power? do that which is good, and thou shalt have
praise of the same: For he is the minister of God, a revenger to execute
wrath upon him that doeth evil. Wherefore ye must needs be subject, not
only for wrath, but also for conscience sake." Romans
13:1-5
Elder
Pierson lists four General Conference guidelines that determines whether
the church will go to court. Do any of the rules apply to the cases
under consideration?
1)
When government demands constitute a violation of a plain "Thus saith
the Lord," the church would go to court. But the government is seeking
to enforce laws with
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which
the church agrees. There is no violation here. This rule does not apply.
2)
When the government violates the U. S. Constitution, the church would go
to court. But here Elder Pierson provides no explanations of how laws at
hand violate the Constitution. The only laws at issue are anti-sex
discrimination laws. The church agrees that sex discrimination in
remuneration is bad. How do these laws violate the Constitution? Are
laws prohibiting excessive child labor constitutional, while those
prohibiting sex discrimination unconstitutional? If so, then how, or
why? Elder Pierson offers no reasons. Without them this rule cannot
apply.
3)
When the government operates beyond its rightful sphere, the church
may go to court. But again no reasons or explanations are forthcoming as
to how the anti-sex discrimination laws intrude unconstitutionally into
legitimate church activities. Does enforcement of anti-sex
discrimination laws involve an unconstitutional scutiny, whereas
enforcement of health and safety codes do not? Without answers, neither
can this rule apply.
4)
When the church has problems outside the United States, the church
(under modifications of the above rules) could go to court. But
obviously this rule does not apply, since all the lawsuits have been
brought within the United States.
Since
no reasons have been given showing how any one of the four rules would
apply to the court cases Elder Pierson discusses, it was pointless to
include them in the article. None shows why the church should have gone
to court in these cases. After reading such statements as, "It
is unusual indeed when we take issue with the ordinances or directives
of the Government," one would think that very powerful, very
compelling reasons would have to exist to convince the Adventist laity
that these court cases were necessary. But we cannot find such reasons.
We cannot even find poor reasons. We find no reasons at all.
"Only when matters of conscience," Elder
Pierson writes, "conflict with
legal requirements would we be unable to comply fully with the laws of
the land." Yet he fails to tell the church what specific "matters of
conscience" in these cases "conflict with legal requirements." Is it a
"matter of conscience" that we resist the legal requirements of equal
pay for equal work? This is all that the government is asking. Only lay
employees are subject to the Fair Labor Standards Act. The clergy are
not involved. There is no collision between these laws and legitimate
religious activities than there is between health and safety codes and
our legitimate religious activities. Is it a "matter of conscience" that
we resist routine investigation and investigations of specific
complaints when and if any of our institutions should violate these
laws? There is no more intrusion of the government into church affairs
involved in the enforcement of these laws than is involved in the
enforcement of health and safety laws.
In the
absence of any specific conflicting "matter of conscience" that Elder
Pierson could bring forward, and in the absence of any conflicting
"matter of conscience" involved in obeying these laws, we must conclude
that this massive and costly resistance to the Federal government was
baseless and futile.
On
December 4, 1974, before the huge Federal Case against the Pacific Union
Conference was launched in Los Angeles, General Conference attorneys
submitted to U. S. District Court Judge Charles B. Renfrew the following
statement:
"The elders of the Church are few, and they have
much to do; they have already had to spend too much of their time, and
far too much of the Church's treasury, which comes from the tithes and
offerings of faithful people, in connection with this case." (Opening
Brief for Defendants, EEOC vs PPPA and GC, p. 105)
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One
might ask rhetorically, then, Why are they spending the church's
treasury, which comes from the tithes and offerings of faithful people,
in this way? Why not rather use it for which it was intended -- to pay
fair and lawful wages to workers in our institutions?
"First Minister" Explanation
Elder
Pierson admits that "the use of first
minister" was "applied" to
a General Conference officer in an affidavit. He fails to mention that
it was he himself who used the term in his own signed affidavit and that
he applied it to himself in his capacity as General Conference
President. "It is... the desire and purpose of the leadership of the Church,
including myself as its first minister for the time being," his
statement reads, "to identify
problem areas and make needed changes..." The context of this
statement reveals that he, acting as "first minister" of the Church, was
qualified "to make needed changes." Such a statement carries obvious
overtones of "primacy," since "first" literally means "prime," with
attendant power and authority to act on that primacy. And when used
together with a description of the Seventh-day Adventist church as a
"hierarchy," it echoes the term, "primacy of the pope" especially in the
ears of judges not familiar with true Seventh-day Adventist church
government and authority.
The
standard New Catholic Encyclopedia defines "primacy of the pope"
as "that full, supreme, and
universal authority over all bishops and faithful of the Church which
belongs by divine right to the bishop of Rome as the successor to St.
Peter, who received such a primacy among the Apostles directly from
Christ." (Vol. 11, p. 779) But Ellen G. White wrote:
"God
has never given a hint in His word that He has appointed any man to be
head of His church. The doctrine of papal supremacy is directly opposed
to the teachings of the Scriptures. The pope can have no power over
Christ's church except by usurpation." (Great Controversy, p.
51)
Orders of Clergy
In his
report to the Church, Elder Pierson also made this statement: "In the Adventist ministry we do not have various 'orders,' with some
'outranking' others." Here is the president of the General
Conference telling the laity of the Church that we have no orders of
ministry, yet telling the courts that we do. In his own affidavit,
signed by him on November 30, 1974, Elder Pierson told Judge Charles B.
Renfrew (EEOC v. PPPA and GC) that "the
orders of ministry in the Seventh-day Adventist Church include Ordained
Ministers, Credentialed Missionaries, Licensed Ministers, Licensed
Missionaries, and Credentialed Literature Evangelists" (p. 8) and
that "the total number of
Seventh-day Adventists in all Orders of Ministry is approximately
75,000" (page 9).
Elder
Pierson describes some of the duties of one of these "Order of Ministry"
in this way: "An ordained
minister is authorized and expected to preach the gospel of our Lord
Jesus Christ, and to administer the sacraments..." (Same document,
p. 8)
The Term - "Hierarchy"
"The use of the term hierarchical system by
attorneys," Elder Pierson says,
“also disturbed a few people." He ignores the fact that people have
been more disturbed over the use of the term hierarchy to describe the
Seventh-day Adventist church, not by attorneys, but by high church
officers. In an affidavit which he signed on February 6, 1976, [then]
Vice President of the General Conference Neal C. Wilson said this: "The
Seventh-day Adventist Church... maintains... a hierarchical structure of
church authority." (Presented to Judge Manuel L. Real in Case
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CV
75-3032-R, US Secretary of Labor vs Pacific Union Conference and General
Conference of Seventh-day Adventists. On April 1, 1977, Judge Real ruled
against the church's arguments that the First Amendment to the
Constitution protects Adventist institutions from obeying the Fair Labor
Standards Act requiring equal pay for equal work.) And in an affidavit
signed on December 3, 1974, by [then] General Manager of the Pacific
Press W. J. Blacker, Elder Blacker asserted this: "The
General Conference has control over all aspects of Pacific Press. . .
through the hierarchy of the Seventh-day Adventist Church." (Presented
to Judge Charles B. Renfrew in Case No. 74-2025 CBR, EEOC v PPPA and
General Conference, in U.S. District Court, San Francisco.) Elder
Pierson's report to the laity goes on to insist that our "hierarchical
system" is really a "'representative' form of government." But a
"representative hierarchy" is a contradiction of terms.
On the
one hand, a representative (delegate) by definition is not one who holds
authority in his own right. To the contrary, he is an instrument of
those who hold the true God-given authority, the constituents, the local
church members, who have elected and delegated him. On the other hand, a
hierarch is literally a "sacred ruler" or "high priest," one who
receives his spiritual authority directly from God and governs the
church by divine right. In representative church government, God-given
authority rest ultimately with the body of individual believers, and
expresses itself through representatives or delegates of the believers.
The
SDA Church Manual recognizes the Adventist system to be
representative rather than its opposite, hierarchical: "Authority in the church rests in the church membership." (p. 46
[1967 edition]) But the General Conference attorneys, acting under the
directions of President Pierson and Vice President Wilson portrayed the
Seventh-day Adventist church as a hierarchy: "A
'hierarchical' church is one in which the decisions are made at the top
of the organizational ladder." (Reply Brief for Defendants in EEOC
vs PPPA and GC, p. 28) They were applying this term, not to the Roman
Catholic Church, but to the Seventh-day Adventist Church. "The
General Conference Committee," [then] Vice President Neal C. Wilson
testified under oath in the U.S. District Court for Northern California
(EEOC vs PPPA & GC on March 20, 1975, "is
the highest authority in the Seventh-day Adventist Church."
Judge
B. Renfew, unfamiliar with the original structure of the Seventh-day
Adventist Church, received a picture of "hierarchical" Adventism from
the General Conference officers that showed the Genera! Conference
Committee wielding "hierarchical" spiritual power sufficient to secure
the excommunication of two SDA church members in good and regular
standing by "hierarchical" determination alone. Testified Elder Wilson
on this same day, "The General
Conference Committee felt that this discipline [disfellowshipping
Lorna Tobler and Merikay Silver, two women who sought equal pay for
equal work under the law] was
necessary in this case. . . The Church (that is, General Conference
Committee) felt that inasmuch as these ladies were at variance with the
Church [as determined by the General Conference Committee], the local church of which they, where they hold membership, should be
be informed of that."
This
drift toward hierarchical rule in modern Adventism has gone so far that
the highest General Conference officers have been able, through their
own Adventist attorneys and non-Adventist attorneys, to deny the
historic Seventh-day Adventist stand against the kind of spiritual
authority claimed by the Roman Catholic Church and to label as "false
doctrine" our historic position. Thus did the General Conference
attorneys sweep away our historic position, a position adopted by the
pioneers, including Ellen G. White:
"Although it is true that there was a period in the
life of the Seventh-day Adventist Church when the denomination took a
distinctly anti-Roman Catholic viewpoint,
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and the term 'hierarchy' was used in a perjorative
sense to refer to the papal form of church governance, that attitude on
the Church's part ... has now been consigned to the historical trash
heap so far as the Seventh-day Adventist Church is concerned." (Reply
Brief, EEOC vs PPPA & GC, p. 4)
Further the leadership of the Church labelled as "false doctrine" Lorna
Tobler's statement of this position:
"In their zeal to deny the organization and
structure [hierarchical] of
the Seventh-day Adventist Church [Elder Pierson's court version of] in
order to be enabled to deny the authority [hierarchical] of
the General Conference Committee, the intervenor-plaintiffs [Lorna
Tobler and Merikay Silver] fall
into the error of teaching false doctrine, which is contrary to the
doctrine and practice of the [current] Church.
Thus Mrs. Tobler swears: 'I have frequently heard the term 'hierarchy'
used among Adventists when reference is made to the Roman Catholic
system, of which I have always been taught that Adventist strongly
disapprove. I have never heard the term 'hierarchy' used to describe
Adventist ministers as is done in the defendants' brief... and I find it
strange and contradictory to all I have ever learned in Adventist
schools and churches.' In several ways this illustrates the dangers
incurred by an individual church member who presumes to deny the
authority of the duly constituted officials and governing bodies of the
Church... It is not good Seventh-day Adventism to express, as Mrs.
Tobler has done, an aversion to Roman Catholicism ... The term
'hierarchy' or 'hierarchical' has no such adverse connotation in
Seventh-day Adventist theology as Mrs. Tobler suggests." (Same Brief
as above, pp. 29-30)
The
Blame for bringing the term "hierarchy" into Adventism cannot be placed
upon the legal counsel, although Elder Pierson suggests that the terms
in question were selected by non-Adventist lawyers. The attorneys - both
Adventist and non-Adventist - represented him and other General
Conference officers and it was their job to do the General Conference
Committee's bidding. The General Conference president is responsible,
no matter what he claims. The Adventist delegates in Vienna did not
intend to put an irresponsible man into the presidency of the Church.
It
should, furthermore, he clearly noted that nowhere in his report to the
Church did Elder Pierson renounce or abandon the terms, "first minister"
or "hierarchy" as applied to himself and our church respectively. And
nowhere did he admit that he made any mistakes. He said, "If we
have erred... we will try to do better next time." (pp. 7-8, emphasis
writer) He said, "We are only human, We may make
mistakes." (p. 8, emphasis writer) He did not say he erred. He did not
say he made a mistake. Nor has he. For all these arguments and
assertions continue unabated and in full force in the legal documents to
this very moment.
The
good Seventh-day Adventist people will either or to have to accept them
or to shoulder their own responsibilities as members of a
non-hierarchical fellowship of believers, a democratically-based
representative church, to rid these things from our midst.
W.H. Grotheer, Editor
ADVENTIST LAYMEN'S FOUNDATION
P.O. BOX 789
Lamar, AR 72846
(Second Printing)
Note- The printed document is comprised of photocopies of the original court pages.
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