Suits Against U.S. for Spying on Churches OKd by Court

Churches can go to court to protect their congregations from being spied upon by undercover government agents, a federal appeals court ruled Wednesday in a case related to the 1984 sanctuary movement investigation.

The U.S. 9th Circuit Court of Appeals in San Francisco said a district judge in Phoenix must now decide whether four Arizona churches that were “bugged” by paid government informants have sustained continuing injury from the intrusion. The judge must also determine whether the government surveillance is likely to continue or whether the case is now moot.

But the appeals court said in a 3-0 ruling that U.S. District Judge Charles Hardy was wrong to dismiss the church suit on grounds that the congregations did not have a right to raise the issue of religious freedom.

“It’s a great day for the free exercise clause of the First Amendment,” declared Peter Baird of Phoenix, chief counsel for the local churches and two national church bodies that filed the civil rights action against the government in January, 1986.

“The (appeals) court is saying . . . that faith, hope, love, charity and prayer, which are all critically important subjective values, are protectable in our courts,” Baird said in a telephone interview from Phoenix.

Informants were hired by the U.S. Immigration and Naturalization Service to infiltrate and secretly tape-record worship services and Bible study meetings at the churches in 1984 and 1985. The government contends that the sanctuary movement, which involved several hundred churches harboring Central-American refugees, was a threat to U.S. immigration policy.

The surveillance of churches came to light during criminal prosecution of sanctuary movement workers, eight of whom were convicted in May, 1986, for conspiring to smuggle, transport or harbor illegal aliens. The convictions are under appeal to another panel of the appellate court in a separate case. Wednesday’s ruling will not affect that outcome, according to Baird.

Noting that the INS informants’ conduct was “without search warrants or probable cause to believe that it would uncover criminal activity,” Appeals Judge William A. Norris wrote that when church members “are chilled from participating in worship activities, refuse to attend church services for fear the government is spying on them and taping their words, the church suffers organizational injury because its ability to carry out its ministries has been impaired.”

The churches claimed in the suit that clandestine eavesdropping had resulted in losses in membership and financial support; cancellation of a Bible class for lack of participation; reluctance on the part of parishioners to pray aloud, seek pastoral counseling and make confessions, and diversion of clergy from pastoral duties.

In the opinion, Norris wrote, “A judicial determination that the INS surveillance violated the First Amendment would reassure members that their religious expression would not be recorded and become part of official records.” But he sided with the district court in its opinion that INS officials named as defendants were immune from liability for money damages.

The suit was initiated by Alzona Evangelical Lutheran Church in Phoenix; Camelback and Sunrise Presbyterian churches in Scottsdale, and Southside Presbyterian Church in Tucson. The Presbyterian (U.S.A.) and American Lutheran denominations joined the action.

The National Council of Churches and 17 religious bodies--including Baptist, Quaker and Jewish groups--later joined in filing “friend of the court” briefs supporting the churches’ appeal of the lower-court dismissal.