Judge Diane S. Sykes: "Clearly
raises some constitutional concerns."
Judge William J. Bauer: "How about Reform Bahai?"
Partial transcript below, near the end, in black and red font, specifically highlights Reform Bahai, mentioned in the US Court of Appeals, February 20, 2009. Mp3 file.
Listen to the three-minute clip:
Listen to the full 30 minute or so recording of the Court proceedings direct from the USCourts.gov website:
Below, an update from Jeffrey Goldberg, one of the lawyers representing the Orthodox Baha'i Faith, posted to talk.religion.bahai, along with several of his comments on it. See especially the last several paragraphs for reference to the Reform Bahai. The same message, along with further details and Court PDF files, is available on the Orthodox Baha'i blog.
Message from discussion 7th Circuit Ct of Appeals Judges hammer NSA's attorney
(Source of original talk.religion.bahai post, quoted here below.)
Mr. Jeffrey Goldberg comments below, quotes from the Court Record,
and follows up with further comment at the end:
The oral arguments of the Wilmette NSA's appeal of Judge St. Eve's
decision favoring the Orthodox Baha'is was held on 20 February 2009 in
Here is a transcript of part of the exchange between Mr. Handelman,
the attorney for the NSA, and a couple of the Judges of the Court of
Appeals. No matter how hard he tried to obfuscate the outrageous
position of the NSA, the Judges carefully questioned him and exposed
the oppressive and fascist nature of the NSA's position, and it is
here for all the world to see. [Incidentally, Judge Bauer below
persistently questions Mr. Handelman on how the 1966 injunction was
entered and Mr. Handelman evades the fundamental truth that only the
NSA appeared at the "hearing" and that the Remey organization did not
appear and put on evidence (for some unknown reason). Mr. Handelman
later admitted that only the NSA appeared which means the Injunction
was effectively entered by "default"]
Here is part of the oral argument. Enjoy:
Judge William J. Bauer Judge Sykes
Jeffery A. Handelman, for Defendant-Appellant National Spiritual
Assembly of the Baha'is of the United States: The principle we are
here advancing today has been adopted by other courts of appeals and
that is that a-- while the general rule is that a nonparty cannot be
bound by an injunction issued in a case in which it wasn't named as a
party, there are -- there is an important exception to that general
rule and that is a nonparty is bound by an
injunction if he is legally identified with the defendant
Judge William J. Bauer: Do you know of any case involving that
particular rule that you enunciated to us in a civil rights case?
Handelman: Your honor, there are a couple of cases on point, the
Federal Circuit in Additive Controls addressed this question of what
do you do in applying an injunction when the corporate defendant has
Judge Bauer: That had to do with a patent infringement case?
Handelman: That is correct.
Judge Bauer: Other than a patent infringement case, do you have
anything besides-- civil rights cases that involve that theory that
you just enunciated?
Handelman: The two cases we rely on-- one is a patent infringement
case Additive Controls. The other one is a trademark infringement case
Judge Bauer: Also from the Circuit?
Handelman: That is from the First Circuit
Judge Bauer: The First Circuit?
Handelman: Correct. Both of these cases draw on, first of all, the
fact that Rule 65d codified the common law in this regard and so
Justice Jackson in the Regal Knitwear case summarized Rule 65d: "is
derived from the common law doctrine that a decree of injunction not
only binds the parties defendant but also those identified with them
Judge Bauer: Let me intrude myself again. Was the original injunction
a consent decree or was it a fought out battle?
Handelman: No the scenario leading to the injunction, the...
Judge Bauer: No, all I ask is a very simple question. Did Judge Austin
formulate this decree himself or was it a consent decree?
Handelman: It was not a consent decree.
Judge Bauer: OK
Handelman: There were findings of fact and conclusions of law...
Judge Bauer: Based on a contested argument before, and presentation of
evidence before Judge Austin?
Handelman: The... my understanding is that the NSA...
Judge Bauer: See you weren't around in those days. I was.
Handelman: But your Honor Judge Austin.. Bare in mind this was the
counterclaim, the original was, was against the NSA. The trademark
infringement claim was brought by way of a counterclaim. So they
started it. We responded and there was a findings of fact and
conclusions of law entered by Judge Aspen.
Judge Bauer: After a hearing?
Handelman: I do not know if there was testimony at the hearing. I do
not believe there was testimony given at the hearing by both sides but
Judge Bauer: What was the predicate for the decision? Stipulation of
Handelman: No, there was no stipulation, the NSA...
Judge Bauer: Then how did he arrive at a decree at all?
Handelman: The uh, I believe, the NSA submitted, appeared at the
hearing and presented Judge Austin. I don't know if there was live
testimony at the hearing or not but it presented evidence on which the
findings and conclusions were based.
Judge Bauer: What evidence did they and how did they present it?
Handelman: Well, for example, the deposition of the chairman of the
UHG was taken and submitted to the Court, so we had the deposition...
Judge Bauer: Accepted by both sides as factually true?
Handelman: The testimony was sworn deposition testimony of the
Judge Bauer: There is sworn testimony on each side of the case
normally but I want to know, how did Judge Austin arrive at the
conclusion if there was no presentation of live witnesses?
Judge Bauer: Was it a stipulation of facts? In which case..
Handelman: No I do not believe it was a stipulation, your honor. We
can look into whether
Judge Bauer: It was a question of fact, and he made a resolution based
Handelman: If I could look into that and get back to you I would
prefer to do that.
Judge Bauer: I have no idea how the decree came to be, thats my
Judge Diane S. Sykes: Do you know whether the constitutionality of
issuing such an Injunction was litigated, given the religious context?
Handelman: Yeah, I believe Judge Austin made explicit findings that
the trademark laws apply equally to religious organizations and
commercial organizations and that this, this case involved a blatant
infringement of trademark rights that were recognized under federal
Judge Sykes: The legal landscape in this area of course has changed
since then. We are talking of, about an injunction issued 40 years ago
and the Supreme Court, in the meantime has issued the Presbyterian
Church case that talks about the principles, the neutral principles
doctrine that needs to be applied in this context, and of course that
case wasn't on the books at the time.
Handelman: That is correct your honor. With respect to, first of all
the validity of the trademark and the finding of infringement, those
issues are not open to be retried in the context of a contempt
proceeding as a prefatory matter, but beyond that the law is well
settled that religious organizations as I mentioned are entitled to
the protection of the trademark laws and in this case...
Judge Sykes: But they are not entitled to a judicial declaration that
their church is the one true church and thats what Judge Austin said.
Handelman: Well if, your honor, in the context of a religious case
under the Lanham Act, the mark is valid. There is no per se rule
against trademark protection in the religious organization context.
What you look at is whether the mark in question signifies affiliation
or membership with a single organization and in this case the National
Spiritual Assembly has a three tiered administrative structure as is
laid out in the briefs. You have the Universal House of Justice at the
highest level, you have the national spiritual assemblies at the
intermediate level of which there are 183 worldwide, and then you have
the local spiritual assembly. The Baha'i mark is federally registered,
is extensively used, was federally registered at the time of the
original injunction, and it signifies members who are affiliated with
national spiritual assemblies authorized by the Universal House of
Justice in Haifa. Now whats happening in this case, the Alleged
Contemnors, are through their web sites calling themselves the
one case, the SIBC has a web site where it calls itself the official
Universal House of Justice, and as a result prospective members are
going to that site thinking they are contacting our client, the
Universal House of Justice in Haifa Israel, when they are not. They
are also believing that the content on the site is approved by the
Universal House of Justice, when it is not. And this is precisely the
harm that the Lanham Act is intended to prevent and Professor McCarthy
in his treatise recognizes as much, and if I could quote briefly: "If
a parent religious society remains true to the tenets of the religion
it is entitled to protection against the minority's use of the same
name. For example, a preliminary injunction can be obtained by the
Mother Church against a local which has disaffiliated as it stops
paying to the Mother Church and the rationale makes sense because
without a preliminary injunction the Mother Church would be outside
Judge Bauer: Who are you quoting at the moment?
Handelman: Professor McCarthy, his treatise on Trademark and Unfair
Competition. So he is recognizing...
Judge Bauer: He is recognizing but the Supreme Court is more
significant than Professer McCarthy is I would suspect, wouldn't you?
Handelman: But the point is that this case does not call upon this
Court to evaluate religious doctrine. It calls upon this Court to
apply the Lanham Act to religious organizations which has been done
Judge Sykes: Well to the extent that you are reading the injunction as
prohibiting anyone other than the NSA from using the word Baha'i in
the title of the religious organization's name, um, that clearly
raises some constitutional concerns. Is that how you are reading the
injunction? That you have exclusive, that your client has exclusive
rights to the term Baha'i and no schismatic organization, schismatic
group, breakaway group could ever use it into perpetuity in the United
Handelman: As long as the trademark rights are valid and federally
registered and not abandoned, that is correct, as Professor...
Judge Sykes: The word Baha'i? So to use a hypothetical. Someone could
copyright Christianity. Somebody could copyright Judaism, and that
would prohibit anybody else from using that terminology in the title
of their religious organization?
Handelman: No, each, each religious name or
Judge Sykes: I am sorry, not copyright, trademark.
Handelman: Yeah, each religious name or mark has to be evaluated on
its own merits. There is no blanket...
Judge Sykes: But whats the response to the hypothetical, though?
Handelman: The hypothetical is yes, we. In other words a splinter
group that is not affiliated with the National Spiritual Assembly
authorized by the Universal House of Justice is not permitted to use
the term Baha'i in a way where it is holding itself out as being
affiliated with the group headed by and authorized by the Universal
House of Justice.
Judge Sykes: Well that's, that's, different. But they can use the
word Baha'i in the name of their new church, but they just can't use
it in a way that implies affiliation with the Mother Church.
Handelman: That is correct. They cannot, cannot confuse the public
into believing that they are affiliated with the Mother church when
they are not, particularly where, as here, their doctrines are in many
cases antithetical to those espoused by the Mother Church.
Judge Sykes: What could they call themselves and escape liability for
Handelman: They would have to use a non-confusingly similar name
because they are not...
Judge Sykes: Can they use the word Baha'i?
Handelman: It would depend on-- not if it suggested affiliation with
the Mother Church.
Judge Bauer: How about Reform Bahai? Can they use that term?
Handelman: That would be a hypothetical that...
Judge Bauer: That's my hypothetical...
Handelman: It would...
Judge Bauer: And I want a hypothetical answer.
Handelman: If the use suggested affiliation...
Judge Bauer: I just gave it to you. Reform Bahai.
Handelman: No, that. Under the injunction, that would be pro-pro-prohibited.
Judge Bauer: Yeah, I read the Injunction. I just don't know how it
came to be. But you're going to enlighten me on that subject.
Handelman: So the injunction would prohibit a use likely to cause
confusion as to affiliation....
[For documentation regard the generic term "Bahai" being used in the USA
since 1900, see the January 7, 2008 letter from the Reform Bahai Faith at
Letters to Judge Amy St. Eve - Reform Bahai Faith, Response to the US District Court Ruling ]
Funny thing is Mr. Handelman quotes from Professor McCarthy that "If a
parent religious society remains true to the tenets of the religion it
is entitled to protection against the minority's use of the same
name." Of course, the Wilmette NSA DOES NOT REMAIN TRUE to the tenets
of the religion as the Orthodox Baha'is are constantly pointing out.
We do not know how the Court will rule, but clearly the Judges of the
7th Circuit are not fooled by the NSA's obfuscation. The NSA wants
the Courts to enforce their belief that they are the one and only
Baha'i Faith, and the NSA has proved itself to be in contempt of the
basic religious freedoms of this country, even while the publicly
whine about similarly motivated persecution against them in Iran, a
country that does not have the same traditions of freedom of religion.
The true colors of the NSA come out here. They would trample over our
freedom of religion and the Bill of Rights of the U.S. constitution.
This is the World Order they seek to impose upon the world.
There has been no evidence that the Orthodox Baha'is have any web
sites or publications that confuse the public to believe that we are
affiliated with the headless UHJ. To the contrary, everything on our
sites is critical of that organization and expressly points out our
differences. But they have taken the position that simply use of the
word "Baha'i" somehow creates the confusion and this is an absurd and
The suit involves both the Orthodox Baha'is and the Baha'is under the
Provisions of the Covenant (which is the Jensen/Chase group and I
believe is responsible for the web site you mentioned). My point was
that there is nothing like that from the OBF group. The NSA's actual
position, as stated by Handelman after questioning by the Judges, is
that nobody else can use the word Baha'i, and this position is
outrageous if only you could see dispassionately and free of fanatic
There is no confusion in use of terms. The NSA's attorney was trying
his best not to state what their position was, but after being
hammered by the Judges, he was forced to admit that the NSA wants to
enforce the Judgment's finding that they are the one true Baha'i Faith
and they are the only ones who could call themselves Baha'i.
This finding happens to be unconstitutional and goes against a long
line of Supreme Court precedent which began in 1969, several years
after the Judgment was entered. This is what bothers the Judges of
the Court of Appeals. The NSA is asking them to deny us our religious
freedom-- the right to call ourselves Baha'is.
The comments of the heterodox believers demonstrates their lack of
understanding of the Faith. They don't think that preventing us from
calling ourselves Baha'i would prevent us from practicing our
religion. But isn't that what the Iranian authorities are doing:
"Stop saying you are a Baha'i and then we will restore your rights"?
They effectively wish us to recant our Faith.
The Supreme Court case was not decided until 1969, and at the time of
the 1966 Judgment the federal courts were split on the issue (which
split was resolved by the Supreme Court).
The Orthodox Baha'is did raise the issue and the line of cases from
1969 on neutrality principles, but Judge St. Eve never even reached
the issue because she ruled that the Orthodox Baha'is were not even
bound by the Judgment. Since we are not bound by it, the question of
the Judgment's enforceability did not have to be decided.
I believe this is a correct statement. There is binding authority and
persuasive authority. A decision of this Court of Appeals is binding
only in the 7th Circuit, although its logic and reasoning will be
persuasive beyond that.
Not only does Judge Bauer mention Reform Baha'i but he insists that
the NSA's attorney answer whether or not someone could call himself a
Reform Baha'i, and the NSA attorney finally is forced to admit the
NSA's position which is that nobody can call themselves a Baha'i
unless they are recognized by his client's UHJ.
Not only is it disgraceful, but it is extremely hypocritical for them
to run to Congress seeking its condemnation of Iran for persecution of
Baha'is when they are doing the same to us. While the NSA's
persecution of the OBF may be different in scale (but only because the
NSA does not have the power to imprison us or execute us), they are
motivated by the same idea that they perceive us to be heretical and
because we are opposed to their religious authority. It is mind-
boggling for these people to expect the federal courts in the United
States to enforce their version of the Baha'i Faith, to say they are
the one true Faith and everyone else cannot be Baha'is.
It really does not matter, though, whether they get a court order
against us, or whether they have suckered a whole bunch of people so
that they have larger numbers. It does not matter how small we are.
The only thing that matters is what is true and what is false. They
are false and they are destined to fail. Their entire organization is
a house of cards ready to tumble down at any time. Thank God for that!
From: Jeffrey <Jeffrey...@gmail.com>
Subject: 7th Circuit Ct of Appeals Judges hammer NSA's attorney
Date: Wed, 25 Feb 2009 21:16:23 -0800 (PST)
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Baha'i Faith & 7th Circuit Court of Appeals