Appeal Court Decision: US NSA Loses (Again)

Back in January the NSA of the Baha’is of the US brought forward contempt charges against the Orthodox Baha’is based on a +40 year old injunction. After a lengthy hearing, the US NSA lost the case as the judge ruled that the injunction didn’t apply to the current Orthodox Baha’i organization. The US NSA (against the better judgement of this humble blogger) decided to appeal that ruling to the United States Court of Appeals (7th Circuit).

The most recent ruling has finally come after many months of deliberations by the appeal judges. The verdict? Again, a ruling against the US NSA. For the full decision, see the bottom of this post.

For those caught unawares of this whole melodrama, allow me to offer you a recap of the action:

In 1966 Mason Remey and the NSA Under the Hereditary Guardianship brought forward a case agains the NSA of the Baha’is of the US. They were attempting to wrest control of the Wilmette temple and assets from the NSA. They lost but the NSA followed up with a counter litigation strategy that sued them for infringing on the “Baha’i” trademark.

The court found in the favor of the NSA and ruled that Mason Remey’s organization couldn’t use the name Baha’i as that belonged to the NSA. I made fun of this ruling because it defies any and all legal precedent as well as good old common sense. In summary, it has no validity since you can not trademark common terms like Christian, Jew, Baha’i, Muslim, etc. Various factions, like for example the Protestant and Catholic churches use the common term of “Christian” or “church” with equal freedom.

Fast forward to 2006. The US NSA decided to unearth the injunction against Remey from 1966 and apply it to the Orthodox Baha’i organization. There is an important distinction here. The case being argued was not regarding the validity of the trademark claim of the NSA (because everyone knew that was non-existent) but rather the case was whether the injuction from 1966 applied originally to Mason Remey’s organization would be valid and relevant to the current Orthodox Baha’i organization.

The NSA of the Baha’is of the US argued that it did. The Orthodox Baha’is that it didn’t because they were a distinct and separate organization. The NSA obviously knew that their case would not be worth anything if it was based on the 1966 trademark ruling so they simply attempted to have the previously applied injunction towards Remey’s organization applied to the Orthodox Baha’i organization. But they failed to prove (twice) that the 1966 ruling applied to the defendants.

The judge ruled in their favor and against the NSA – both times. Here are some interesting excerpts from the ruling:

…civil authorities may not make judgments about religious controversies when deciding church property disputes. Kedroff, 344 U.S. at 116. (The church-autonomy principle recognized in Watson ?must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.?).
Building on Kedroff, the Supreme Court held in Presbyterian Church that ?the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. 393 U.S. at 449. The Court acknowledged that ?[c]ivil courts do not inhibit [the] free exercise of religion merely by opening their doors to disputes involving church property.? Id. But ?First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.? Id. The ?[First] Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.

Considered in light of these First Amendment limitations on the court’s authority, certain aspects of the 1966 injunction are troubling. The decree declares that ?there is only one Baha’i Faith,? that Shoghi Effendi was its last Guardian and none has come since, and the National Spiritual Assembly was its representative and ?highest authority? in the United States and was ?entitled to exclusive use of the marks and symbols of the Faith,? including the exclusive use of the word “Bah??’?.” Declarations of this sort push the boundaries of the court’s authority under Kedroff and Presbyterian Church. In church property disputes (trademark suits obviously qualify), the First Amendment limits the sphere in which civil courts may operate. When a district judge takes sides in a religious schism, purports to decide matters of spiritual succession, and excludes dissenters from using the name, symbols, and marks of the faith (as distinct from the name and marks of a church), the First Amendment line appears to have been crossed.

The current decision ends with (pg 39):

The district court treated the trademark-registration filings as nonbinding evidentiary admissions rather than binding judicial admissions… The National Spiritual Assembly apparently agrees with this characterization, but argues that the court gave them insufficient weight. We find no fault with the district court’s treatment of this factual matter. Other than the version of spiritual-leadership succession described in trademark filings, the National Spiritual Assembly offered no evidence of a link between Remey and the Second International Council or Bah??’? Publishers. Indeed, Remey had no involvement in either organization and died more than 25 years before the Second International Council was established. Neither the Second International Council nor Bah??’? Publishers received any money, property, or other assets from Remey or the Hereditary Guardianship. On these facts the district court properly concluded that the Second International Council and Bah??’? Publishers are not successors to Remey.

Honestly, I’m embarrassed for the NSA of the US. The outcome is not surprising at all and it comes at a great price. Both financially and prestige wise. There is already media attention covering the decision which naturally is not flattering for the NSA.

I’m at a loss to imagine what could possibly possess the NSA to take up this quixotic adventure. The only explanation is that it was done with the guidance of the UHJ/ITC who, being far removed from the US, have little familiarity with the fundamental legal landscape they entered. I’m saddened to see the precious attention and funds of the Faith being spent in such a disastrously destructive manner.

Even had the NSA won and was able to apply the 1966 injunction against the current Orthodox Baha’i organization, it would have been for naught as the injunction itself would have been voided immediately after being challenged by them. The law does not allow for terms in the public domain to be trademarked or copyrighted. This is why no one can lay claim to the word “chair” or “desk” or “Christian” or the symbol of the cross, etc. I’m astonished that the NSA made such a foolhardy decision to go ahead and waste their time and the funds of the Faith in such a manner. They either had the most incompetent legal representation who failed to inform them of this very basic and fundamental legal fact or they were informed and chose to ignore it and forge ahead nevertheless.

I’m not sure which possibility is more palatable.

For the full decision, see below (No. 08-2306 Argued February 20, 2009 — Decided November 23, 2010):

  • Baha’i

    Geez. Why are the Baha’i insitutions doing these things to themselves? It’s like they want to get bad press, and lose credibility in the eyes of mainstream society. Maybe that’s it, perhaps they are seeking a “persecution complex” in their followers, “besieged” by the evil society. I don’t know about that, I’m just at a loss for words.

  • fubar

    As I’ve stated elsewhere on this blog, the pre-rational (backward) purity myths (revelation, covenant, infallibility) that are part of the foundation of bahai theology are a HUGE DISASTER.

    Clinging to such absurd PURITY MYTHS can only lead to suffering.

    Such backward metaphysics find no place in modernity.

    Such backward metaphysics are a GIANT OBSTACLE to the nurturing of postmodern, integral, holistic spirituality – which is needed for a real paradigm shift toward transrational culture (the integration of transcendent and rational consciousness).

  • Guest

    Life has been so good for me on the otherside of all this. To be self labeld as a “Bahai” for 16+ years and end it’s labeling was the best thing I could have done for my own sanity. Where I am still deeply and profoundly moved with the Writing of the BF, and without doubt have become a better human being, leaving the dysfunction of the administration has now elevated me to a even better elavation. I suggested for member pourposes they considered accepting my verbal declaration in the (3) pre-requesests but they did not accept. I am heading to a gather for the celebration of the Covenant tonight, should be fun… I always bring my sense of humor with me… :( … for those of you afflicted by the actions of the self appointed leaders of your administration… Most lovingly, Bird

  • Steve Marshall
  • Craig Parke

    But there are rumors just starting to appear in the wake of this judicial ruling that the Supreme Court of the United States and the World Court in the Hague are BOTH going to let the Administrative Order of the Baha’i Faith copyright the word “incompetence” in every language on Earth. The AO will have exclusive world rights to the very concept itself to use the world exclusively as they see fit daily. No one else on Earth will be able to use the word without being charged with copyright violation by the AO worldwide. Perhaps there will be a new Ruhi Book out very soon on “The Dynamic Force of Incompetence”?

    But I still believe in my heart that the Baha’i Faith will eventually get straightened out sometime over the next 500-800 years with the rise of the global communication of the Internet and lifetime incumbent mental cases being held fiercely accountable to the entire world in public 24/7/365/1000. The Promised Day has indeed come and it is not going to be pretty on the mentality of lifetime incumbency. Not anywhere on Earth including the Minor Plan of God.

  • Anonymous

    Steve, the NSA has handed the Orthodox Baha’is, that number just around 50 persons, the largest PR campaign and media exposure they’ve ever had.

  • Fglaysher

    7th Cir: Public online 08-2306 case documents
    Opinion in case# 08-2306

    p 7: False finding of “fact” by Judge Austin in 1966

    p 13: “…civil authorities may not make judgments about religious controversies when deciding church property disputes. Kedroff, 344 U.S. at 116. (The church-autonomy principle recognized in Watson ?must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.?).”
    “Building on Kedroff, the Supreme Court held in Presbyterian Church that ?the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes.?

    p 14-15: “Considered in light of these First Amendment limitations on the court’s authority, certain aspects of the 1966 injunction are troubling. The decree declares that ?there is only one Baha’i Faith,? that Shoghi Effendi was its last Guardian and none has come since, and the National Spiritual Assembly was its representative and ?highest authority? in the United States and was ?entitled to exclusive use of the marks and symbols of the Faith,? including the exclusive use of the word ?Bah??’?.? Declarations of this sort push the boundaries of the court’s authority under Kedroff and Presbyterian Church. In church property disputes (trademark suits obviously qualify), the First Amendment limits the sphere in which civil courts may operate. When a district judge takes sides in a religious schism, purports to decide matters of spiritual succession, and excludes dissenters from using the name, symbols, and marks of the faith (as distinct from the name and marks of a church), the First Amendment line appears to have been crossed.”

    p 17: “’It is a principle of general application in Anglo-American jurisprudence that one is not
    bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.’ ?”

    p 20: The court expands on and concludes that the parties were simply not in privity with the 1966 flawed decision by Judge Austin.

    Chicago Tribune. Baha’i rift. Baha’is upset with Orthodox Baha’i Faith

    Comments posted to The Chicago Tribune Forum on one page

  • Craig Parke

    Yes. That is an astounding article at the Chicago Tribune. All of the issues of that past are now being put on the front pages of the entire world in blunder after blunder. But it doesn’t really matter because the cat is out of the bag anyway in Internet technology. This is a very insightful post tonight by Arianna Huffington:

    “Facebook, Twitter and the Search for Peace in the Middle East”

    http://www.huffingtonpost.com/arianna-huffington/facebook-twitter-and-the-_b_788378.html

    Thanks to the ill advised top down totalitarian control of the hearts and minds of the Baha’i rank and file by lifetime incumbents on it’s Institutions since 1921, the Faith does not have the culture of bottom up openness to be a player in the new communication world that is being born second by second that is going to continue to change everything worldwide.

    How this has all turned out is even more painful when you realize that the microcomputer technology revolution was all started by a Baha’i, Bill Fernandez, introducing Steve Jobs to Steve Wozniak in Cupertino, CA over 35 years ago. Although the electrical engineers at HP said it could not be done, Wozniak figured out how to do interlaced video on the 6502 chip via the CPU itself and got a patent on that inspirational thought invention and the rest is history.

    But the Baha’is are now dead in the water in the microcomputer now 64-bit UART communication explosion because of individual Baha’is censorship fear of the AO. So the Baha’i Faith will not be a player. It is very tragic. But that is how it all turned out. There is just too much fear now with the resulting self-censorship. It is now all radio silence in the Baha’i Faith. It could have all been so much better in light of the opportunities that are coming for everyone on Earth who is free to speak and communicate without fear and censorship.

    So it goes.

  • M Mario1234

    I am wondering how much this NSA’s wrong doing is costing American Baha’is? Do they know that the money that they pay for charity and the like to their NSA is wasted in this way which did not had anything other than humiliation for them?
    Mario

  • Bird

    too true

  • Bird

    This is a different topic but I found this revelation of interpretation interesting. Here is the actual documentation from the “Free Religious Association” of a talk given by AbdulBaha (Starts on page 84- introduction at the bottom):
    http://books.google.com/books?id=GC4NAAAAYAAJ&pg=RA5-PA13&lpg=RA5-PA13&dq=%22Free+Religious+Association%22+1912&source=bl&ots=gqlKdG-4wo&sig=jJz7kXbGVKLYOfpqGwl49cDffyE&hl=en&ei=xX3xTMy4GovmsQOztp3GCw&sa=X&oi=book_result&ct=result&resnum=2&sqi=2&ved=0CBUQ6AEwAQ#v=onepage&q=%22Free%20Religious%20Association%22%201912&f=false

    and here is the Bahai version of that same talk:
    http://reference.bahai.org/en/t/ab/PUP/pup-53.html

    Seems a little bit off from eachother and in my mind what was recorded real time by the FRA sounds more like what the Bahai’s are putting themselves through these days in the strife… LYL Bird

  • Hyundai

    can it be claimed as a tax deduction?

  • Sen McGlinn

    In one respect, this was a win-win for the NSA. Either the court would enforce the injunction, or it would rule that the various Remeyite factions were not continuous with Remey himself, but new movements.

  • Baquia

    According to US laws, religions/churches are not taxed – so no, it can not be claimed as a tax deduction as there are no taxes payable to begin with.

  • Baquia

    Sen, I fail to see how the ruling is a ‘win’ for the NSA in any sense of the word. They, after all were fighting and paying lawyers to argue twice, that there was privity. If the ‘win’ is that there isn’t, why did they fight tooth and nail to prove that there was? Perhaps you can explain what you mean a bit more.

  • Sen McGlinn

    Now there is a court ruling that the BUPC has no close connection with Mason Remey’s group — while they base the arguments for their existence on Remey being the second Guardian. But if the court had ruled the other way, the injunction against Remey, preventing him using the name “Bahai,” would now apply to the BUPC.

    This is not to say that the case was worth the cost, in money and bad PR, and free publicity for the splinter groups, but I can see the attraction for the NSA of pursuing a case that would require their opponents to saw off the branch they are sitting on, to argue their right to use the word “bahai.”

  • Desir0101

    Mr. Sen.Good day.
    Why the Bahai Authority are so concern with title/identity/trade mark BahaI
    The Bahai faith supose to be the most powerful revelation from God.
    And if it is such no need to perform all these dramas.
    You preach unity of religion and once become Bahai, you have to practice only meditation prescibe in the faith(shoghi efendi), do not celebrating any other religious festival(UHJ), not the right to be member of any other religion society(UHJ) ,Shunning of believer etc etc. the list is long.

  • Barbruthw

    very well said, Baquia.

  • Baquia

    Well, if we’re grasping at straws, I suppose that husk is as good as any…

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  • Bird

    Do you think the NSA pays taxes? They can but food and give it to the hunger and write it off as money well spent. You mean to imply they are a “for profit” corp? The NSA officers? Well as a shareholder still, may not have a card but a heart fill with the love of Baha’u’llah and the revelation of his mission here, I say go Donald Trump on them all – “There’re Fired!” The AO is just a real piece of work, it’s not the individuals as much as the whole concept of the O”/

  • Bird

    The list is too long… I say it starts with the label “Baha’i which begins the separation of it all, the Alpha and Omega with what started it’s widespread attraction and will one day end it’s attraction.
    I remember so much conflict with the shunning, especially of the entire living bloodline… indeed the list is long…. Bird

  • Desir0101

    Thanks for your appreciation.
    shunning of believer.
    In all previous religion there have always been dissention but never shunning of believer just because of an opinion or an understanding different fron others.
    Despite there differences they all have the same right to visit and do pilgrimage and meet to observe religious feast.
    But these differences have never prevent these religions to fulfill their aim and achieve their goal. I WOULD LIKE TO UNDERSTAND…

  • Baquia

    As Sen reported recently, the NSA filed for a re-hearing on December 9th 2010. The application may be rejected by the court or it may be accepted, we have to wait and see. Full document of the application.

  • Anonymous

    I am SO glad I stopped giving to the Bahai fund years ago. What a waste of money. Unfortunately my poor old Iranian mother still believes they are doing God’s work…

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  • http://twitter.com/VanGrungy Van Grungy

    the baha’i faith is flawed at it’s core…

    mohammad..

    that’s all that needs to be said… you baha’i ARE the stealth jihad..

  • http://bahaisonline.net/tcb Steve

    Troll

  • Fubar

    bahai is too incompetent and dysfunctional to be a “jihad”.

    the real “jihad” is fascist tea bagger idiots like you who are funded by corrupt corporate kleptocrat-plutocrats like the Koch Bros.

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  • Another Guest

    As a Baha’i I am unconcerned, as I imagine the National Spiritual
    Assembly is, about how I may “appear” to others. On the other hand,
    keeping people who are not acquainted with the Baha’i Faith from the
    confusion of the attempted fracturing of the Baha’i Faith’s right to
    claim that it is the single, true, and intended bearer of the name of
    the religion of Baha’u’llah could only be a most serious responsibility
    of the National Spiritual Assembly. Are you suggesting that maybe the
    National Spiritual Assembly should take the name of the faith lightly,
    as if it has little importance, or is merely a tool for someone to
    manipulate.
      Abdul Baha saw it as his responsibility to keep the
    Covenant guarded against those who would attempt to use it for personal
    gain. Was he wrong?
      I personally don’t see the words of Baha’u’llah
    as something which He gave to coerce individuals into accepting His
    teachings. For those who don’t accept the words of Baha’u’llah as
    spiritual instruction or proceeding from the mouth of God, I would
    advise that they follow a path which they feel would give them a better
    access to spirituality.

      Many people seem to approach religion as something which they can use
    for personal gain instead of personal transformation, as something to
    protect them from suffering instead of gaining an understanding of the
    path of sacrifice, or as a metaphysical argument by which to demonstrate
    a “transcendent consciousness”.

      Some here say why waste money on a losing argument. How many here see
    the pronouncement of truth, any truth, as a waste of money? How can
    speaking the truth be a waste of money?  Was Baha’u’llah wasting His
    time as a prophet?  Was it something He chose to do because it was
    metaphysically expedient?  How about His words being, “A giant obstacle
    to the nurturing of postmodern, integral, holistic
    spirituality – which is needed for a real paradigm shift toward
    transrational culture”?   Whew?

       Was the prosecution and punishment He endured to better His standing in the community? To gain power and prestige?

      Either a Baha’i makes an effort to modify their actions to conform to
    the teachings of the prophet, Baha’u’llah, and try to gain an
    understanding of the abundant illuminations of Abdul Baha or they pass
    beyond some turn, missed along the way and fall back, once again to
    return to their original ways, assuming that they have gained an insight
    into the teachings by their short exposure. I have seen this, repeatedly.

      I suspect that when most of us pass to the next world our most
    spiritual actions will be seen for what they are truly worth.  It is my
    sincere hope that we do not bring with us the ridicule of others who
    have found a path from themselves to God.

      My favorite,

    “The world is one country, and mankind it’s citizens.”  

                                                                             Baha’u’llah

  • Craig Parke

    Thank you for your post. It is really quite touching. But the words of Baha’u’llah or Abdu’l-Baha or Shoghi Effendi have NOTHING WHATSOEVER to do with the Baha’i Faith anymore.

    The NEW Worldwide Holy Scripture is the fill-in-the-blank-with-pre- approved-authorized-answers indoctrination in the top down “exercises” of the Ruhi Courses and the sacred Holy Speeches of Peter Khan.

    Where I live, they are now holding focused Study Classes and Reflection Meetings on the Speeches of Peter Khan.  From the World Beyond now He is the Supreme Manifestation of God for this World, the Center of the Covenant, and the Lifetime Appointed Guardian all on CD in ONE-STOP-SHOPPING for EVERYONE. His thoughts rule over all and are now “normative law” for every Baha’i on Earth. No one is stopping this idolatry so it must be authorized right from the top.

    So to actually mention the Writings of Baha’u’llah or Abdul’l-Baha in a post here is totally retro. You need to get with the “program” before someone reports you to a local ABM or AABM for interrogation about lack of “firmness” in the NEW PK Covenant (Tm). His endless speeches speak for themselves and they will now go on forever from Beyond the Grave. FOREVER.

  • Desir0101

    HI,
    Another Guest said,

    Abdul Baha saw it as his responsibility to keep the
    Covenant guarded against those who would attempt to use it for personal
    gain. Was he wrong?”

    God’s covenant has never been violated since time immemorial, and you think that only now that GOD require someone to do it in His place.

    Or God will be at a lost.

    Another Guest said

    ”Are you suggesting that maybe the
    National Spiritual Assembly should take the name of the faith lightly, ”

    That’s what is wrong with you.
    You are gripping yourself to the kingdom of names and are causing much harm than good, as a universally embracing Faith.

    You took pride to say these are sects, but they live without prejudice.
    They all call themselves Christian, they all believe in Lord Jesus.

    And they are not SHUNNING each other.

    They are happy.

    Anoither Guest said

    ..The world is one country, and mankind it’s citizens.”

    But He don’t said that ”The world is one country, and BAHAI it’s citizens”.

    Do you really believe that God the Supreme approve what the NSA is doing.
    Or the NSA  have much to do with the spiritual advancement of the community.

    The Faith is dyeing in a lamentable agony.

    Can’t they see.

    I repeat it again
    You have every thing to change the world but not spirituality.

    As a community you have not been able up to now to give life to Words that will resuscitate you.

    Don’t believe because you bear the name Bahai that you are a superior being.

    Love your enemies but deal mercilessly with your loved ones just because he may disagree with some points in the Faith.

    May be I am wrong and you are right.
     I Pray for HIS forgiveness.

    BYE.

  • AmadodeDios

    Dear Bird -
    Maybe I’m displaying my low skill level, but I clicked on the FRA book, and can see only its cover. Did you get a link with the text of Abdul-Baha’s address, or have you purchased the book? If you have the actual text (and it’s not available on-line) would you be able to scan the parts where you find differences for all to see?
    Thanks,
    Amado

  • Fubar

    The american bahai community has now entered the final, and terminal, phase of its “iranianization” . Even in the face of overwhelming public embarrassment by a member of the ruling secular elites (a law judge), the only thing that the bahai administration is capable is a futile and pointless attempt at  “saving face”.

    That which was once deep is made shallow, once transcendent, now depraved and defiled.

  • Fubar

    The AO is spiritually mutant (like Godzilla in those old Japanese horror/sci-fi movies). It mutated because it was exposed to the radioactive history of bad bahai theology, bad bahai history and uber-toxic family squabbles in the “holy family” (which resulted in Covenant Fascism by the “winners”).

  • Fubar

    Hey Desir,

    Comparing bahaism to the other/real “major” religions is probably not very useful. The manner in which the real major religions co-evolved with their cultures has little to do with bahaism. It is more useful from a social theory perspective, or perhaps a psychiatric perspective, to compare bahaism to cults and marginalized/schizmatic small religious movements.

    For instance, iirc, Nima Hazini/Wahid Azal wrote a paper years ago on the mystical neoplatonic traditions in which he stated that babism/bahaism is “universalized sufism”.

    As you know, sufism has mostly been a marginalized elite within islamic culture (for 500+ years?).

    Of course bahaism is a much more spiritually painful religion to be a member of than is sufism. What does that tell you about its propects?