MEMORANDUM AND ORDER
JACKSON, District Judge.
Plaintiffs United Christian Scientists ("UCS"), an unincorporated association of religionists, and two individual believers, David James Nolan and Lucile J. Place, seek a declaration of the unconstitutionality of a private copyright law enacted by Congress in 1971 as repugnant to the Establishment and Free Exercise Clauses of the First Amendment to, and the Copyright Clause of Article I, Section 8 of, the U.S. Constitution. Defendant is the governing board of the First Church of Christ, Scientist, of Boston, Massachusetts, also known as the Mother Church, the current owner of the copyright in issue (hereinafter the "Church").
The undisputed facts are established by the parties' respective Local Rule 1-9(i) Statements and supporting affidavits.
Defendant First Church of Christ, Scientist, was founded more than a century ago
Mary Baker Eddy copyrighted various editions of Science and Health, the first in 1875 and the last in 1906, but copyrights were never obtained for many versions, and Mrs. Eddy made more than 4,000 changes in the work between 1906 and her death in 1910 alone. Despite extensions obtained under general copyright law, all editions except the 1906 edition had passed into the public domain prior to 1971 when Private Law 92-60, 85 Stat. 857 (1971), was enacted.
In 1976 plaintiff United Christian Scientists, (which claims a current international membership of 11,000 and a mailing list of several thousand more) was formed by a group of adherents to Christian Science who desired to revitalize the religion through proselytism and broad dissemination of all of Mary Baker Eddy's writings. To that end plaintiffs Nolan and Place, Chairman and a trustee, respectively, of UCS, have established a Christian Science Institute in Hawaii from which they plan to undertake worldwide distribution of Science and Health (and excerpts thereof) in book and audio-cassette form. It is plaintiffs' belief, however, that the 1906 edition of Science and Health is not the definitive version, and they wish to publish and disseminate other editions of the text for study and teaching, an activity in which plaintiffs assert they are inhibited by the existence of the copyright acquired by defendant by Private Law 92-60.
Private Law 92-60 grants to the trustees under Mary Baker Eddy's will
The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion...." In Everson v. Board of
Id. at 15-16, 67 S.Ct. at 511.
The "wall of separation" has never since, to be sure, been conceived of as an impenetrable barrier, see Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745, reh'g denied, 404 U.S. 876, 92 S.Ct. 24, 30 L.Ed.2d 123 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756, 760-61, 93 S.Ct. 2955, 2958-59, 37 L.Ed.2d 948 (1973); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1361-62, 79 L.Ed.2d 604, reh'g denied, ___ U.S. ___, 104 S.Ct. 2376, 80 L.Ed.2d 848 (1984), and the fact that a law may operate to the advantage of religion certainly does not alone render it unconstitutional. See Mueller v. Allen, 463 U.S. 388, 393, 103 S.Ct. 3062, 3065, 77 L.Ed.2d 721 (1983); Lynch v. Donnelly, 104 S.Ct. at 1362. But Establishment Clause apprehensions are nevertheless aroused whenever governmental action appears to bestow an official beneficence on religion in general, or on a particular denomination or sectarian enterprise, for, as the Supreme Court has most recently said, "Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any — or all — religious denominations as when it attempts to inculcate specific religious doctrines." Grand Rapids School District v. Ball, ___ U.S. ___, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985). Where legislatures have succeeded in conferring benefits upon religious entities without offending the Establishment Clause there have been factors present which have attenuated the appearance of official favor, such as that the benefits were indirect or remote, Committee for Public Education v. Nyquist, 413 U.S. at 771, 93 S.Ct. at 2964; Widmar v. Vincent, 454 U.S. 263, 273-74, 102 S.Ct. 269, 276, 70 L.Ed.2d 440 (1981), or that the suspect legislation distributed its bounty among the secular and sectarian alike and was formulated with a general public policy goal in mind.
The inquiry which must be made with respect to Private Law 92-60 is not simply reducible, as defendant would have it, to whether religions may ever derive benefit from private acts of Congress, or whether original works of theological import may ever be given the protection of copyright. They may, and they obviously have,
Lemon v. Kurtzman, 403 U.S. at 612-13, 91 S.Ct. at 2111 (citations omitted).
Applying the Lemon test to the law in dispute here, the Court finds that it is the benefit to members of the general public, if any, which is incidental or remote; aid to "religion" is at the heart of the legislation. Private Law 92-60 was openly sought and passed to secure prospective advantage for the hierocracy of one particular religion, and to no discernible advancement of the general welfare, circumstances which render it vulnerable under both parts one and two of the Lemon test and incompatible as well with the general principle of governmental neutrality toward religion the First Amendment commands. See, e.g., Buckley v. Valeo, 424 U.S. 1, 92, 96 S.Ct. 612, 669, 46 L.Ed.2d 659 (1976) (per curiam); Committee for Public Education v. Nyquist, 413 U.S. at 792-93, 93 S.Ct. at 2975; Wallace v. Jaffree, 105 S.Ct. at 2492.
Defendant Church suggests that Private Law 92-60 shares the secular purpose common to all copyright legislation, viz., to "stimulate artistic creativity for the general public good." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). See also Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 reh'g denied, 306 U.S. 668, 59 S.Ct. 588, 83 L.Ed. 1063 (1939). But it is certain that the only author of the only literary work which is the subject of this particular copyright law will not resume her creative efforts reassured by any protection it affords her heirs, temporal or spiritual.
In testimony given before the House subcommittee considering the bill the manager of the Washington office of the Christian Science Committee on Publication asserted that "the unusual nature" of Science and Health necessitated his plea for extended copyright protection, for without such protection "there would be a serious danger that the course of Christian Science church services and the basis of individual religious study by Christian Scientists would be seriously impaired." For the Relief of Clayton Bion Craig, Arthur P. Wuth, Mrs. Lenore D. Hanks, David E. Sleeper, and DeWitt John: Hearings on S. 1866 Before Subcomm. No. 3 of the House Committee on the Judiciary, 92d Cong., 1st Sess. 7-8 (1971). Another Church witness inveighed: "We have got to protect religion, we have got to protect what God
117 Cong.Rec. S 26822 (1971). And, according to the Senate committee report:
S.Rep. No. 92-280, 92d Cong., 1st Sess. (1971) (reprinted at 117 Cong.Rec. S 26821 (1971)).
Such proceedings have the sound of the 17th century to them. They are resonant of what might have occurred before the Committee on Religion of the last Parliament to sit before the English Revolution, but they are discordant in the context of contemporary American political debate. Heresy is no part of the business entrusted to Congress by the Constitution.
Finally, it is by no means assured that even the third part of the Lemon test — the absence of "excessive entanglement" — can be successfully negotiated to allow Private Law 92-60 to stand. While the law is unlikely to entail much in the way of administrative oversight, the same cannot be said with respect to further judicial engagement.
As with most copyright disputes, those arising under Private Law 92-60 will in all probability be resolved by resort to private
For the foregoing reasons, therefore, it is, this 14th day of August, 1985,
ORDERED, that defendant's motion for summary judgment is denied; and it is
FURTHER ORDERED, that plaintiffs' motion for summary judgment is granted, and Private Law 92-60 is hereby declared to be unconstitutional; and it is
FURTHER ORDERED, that the copyright conferred by Private Law 92-60 is held to be null, void, and of no effect; and it is
FURTHER ORDERED, sua sponte, that the judgment entered hereby is stayed pending appeal.
117 Cong.Rec. S 46071-72 (1971).