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 â€?must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.â€?).
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 â€?there is only one Baha’i Faith,â€? that Shoghi Effendi was its last Guardian and none has come since, and the National Spiritual Assembly was its representative and â€?highest authorityâ€? in the United States and was â€?entitled to exclusive use of the marks and symbols of the Faith,â€? 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):
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Hossain Danesh Heavily Promoted By NSA

Never let it be said that the NSA doesn’t take care of one of its own.

After losing his license to practice medicine in Ontario, due to several patients of his coming forward with allegations of sexual abuse, Hossain Danesh was protected by the NSA and given a plum job running Landegg Academy in Switzerland. That was a comfortable, out of the way posting. Especially since it allowed him to put the distance of half the world between himself and what had transpired recently.

Hossain Danesh

Hossain Danesh

Danesh then applied his considerable executive and managerial talent as Rector of Landegg Academy. The result? Landegg closed its doors in 2005 declaring bankruptcy. So Danesh headed back to Canada. Now that 16 years have passed, washing away most people’s memories, it seems that he is ready for his newest public incarnation. And he is being heavily promoted by the NSA.

Earlier this year Hossain Danesh started to give seminars on marriage and family life – akin to a pedophile priest giving a seminar on child rearing.

Apparently the NSA is kicking things into high gear with a string of high profile seminars planned around Canada to promote Danesh even further and reintroduce him to the community as a public figure. Soon Bahai Rants will begin to give odds on when Danesh will end up back on the NSA.

Hossain Danesh’s jam-packed schedule includes workshops on such topics as “Unity of Faith and Reason in Action” and one targeted specifically to youth: “Shaping Our Destiny: An Open Forum for Youth and Young Adults”.

There is also his usual type of workshop which is being promoted under the auspices of the Baha’i Marriage and Family Life Committee. There is no question that this has the full support and backing of the NSA of Canada, the institution that Danesh served on for many years before his fall from grace in 1994. The same institution that continues to have a healthy number of members that were his peers back then.

All this makes me wonder if within a few years Franco Ceccherini will be promoted by the Italian NSA to go around that country giving workshops and talks on the fund.

New Counsellors Appointed by UHJ

The Universal House of Justice recently announced the new round of continental board of Counsellors. The full list is below.

Borna Noureddin

Of those newly appointed is Borna Noureddin. Noureddin was until this appointment a member of the Canadian National Spiritual Assembly of the Baha’is of Canada.

He was elected to the post initially to replace a retiring Don (Otto) Rogers in 2007 and since then he has been re-elected at every consecutive election providing him with a four year heritage at the NSA of Canada. Last year he was also the Chairperson of the NSA of Canada.

It is relatively rare to see a move between the two arms of the Baha’i institutions. A few years ago Counsellor David Smith was relieved of his position as a Counsellor to be first elected to the local assembly of Toronto and then a short time later to the National Spiritual Assembly. Unlike his peers who have spent an average of 9 consecutive years on the body, Smith was a member for just two years.

Of course, as a result of this appointment, there will need be a by-election to replace Noureddin on the NSA of Canada.

Take a look at the names and see if you’re familiar with any of the new or re-appointed Counsellors mentioned. If so drop a comment and let us know of anything relevant. Apparently there will be a conference within a few months in Haifa where the UHJ will consult with them before creating yet another 5 year plan.

Here is the letter from the Universal House of Justice naming the new Continental Board of Counsellors around the world:
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