TUCSON, ARIZ. — RELIGIOUS leaders are hailing as a landmark of constitutional law a federal judge's Dec. 10 decision to limit government spying on churches. But government spokesmen are playing down the decision's significance. ``We ... can only hope that, in the future, the government will stop and think before undertaking these kinds of investigations, '' says David Hardy, general counsel for the Evangelical Lutheran Church in America.
The case, decided in Phoenix by US District Judge Roger Strand, stemmed from a 1984 undercover investigation of the sanctuary movement in Arizona that eventually resulted in the convictions of eight people, including clergy and religious lay workers, on charges of smuggling aliens - particularly Salvadorans - into the United States. The decision does not affect the appeal of the convicted sanctuary workers.
In 1986, Southside Presbyterian Church in Tucson; the Alzona Evangelical Lutheran, Camelback United Presbyterian, and Sunrise United Presbyterian churches in Phoenix; the Presbyterian Church (USA); and the American Lutheran Church filed suit, charging that the undercover investigations violated their First Amendment right to freedom of religion.
Judge Strand ruled that the government does not have ``unfettered'' access to churches. ``The government is constitutionally precluded from unbridled and inappropriate covert activity which has as its purpose or objective the abridgment of the First Amendment freedoms of those involved,'' he wrote.
``That means, the government can't go on a fishing expedition in a church,'' says John Fife, pastor of Southside Presbyterian Church. ``They can't show up for a worship service and write down the license plate numbers of cars in the parking lot.''
Government spokesmen found vindication in the judge's finding that undercover activities are appropriate when the government has a ``good-faith purpose'' for the investigation. ``I didn't see anything in the decision that said we did anything wrong in this investigation,'' says Duke Austin, a spokesman for the Immigration and Naturalization Service (INS) in Washington, D.C.
``We never asked for unfettered access,'' says Donald Reno Jr., the special assistant US attorney who prosecuted the sanctuary case. But Phoenix attorney Janet Napolitano - who, with co-counsel Peter Baird, litigated the suit for the churches - says: ``The government's position throughout this case was that they had the right to go into any church, at any time, and for any reason. If they did have guidelines restricting the taping of religious services, then they violated them.''
According to the Rev. Mr. Fife, the tape to which Mr. Reno refers - of an ecumenical service at Camelback Presbyterian Church in October 1984 - would be in violation of Judge Strand's order, since the government did not claim during the sanctuary trial that any illegal activity had taken place at that service.
Although it is still too early to tell what practical effect the decision will have, legal experts say this is the first time in American history that a judge has placed barriers on government infiltration into churches. Defense attorneys cite examples of broad-based investigations into Southern churches during the civil rights era of the 1960s, as well as government investigations of churches in Eastern Europe and the Soviet Union, as the kinds of situations that would not be tolerated under this ruling.
Attorneys for the US Justice Department, which defended the suit for the INS, say they are reviewing the judge's order and have not yet decided whether to appeal.
In addition to the ``good faith'' standard, Judge Strand wrote that undercover informants who are invited to participate in religious services ``must adhere scrupulously to the scope and extent of the invitation.'' This phrase was interpreted differently by the two sides of the dispute, leaving open the possibility of further litigation.
``It means, if they're invited to Bible study, all they can do is study the Bible,'' Fife says. But Reno maintains that the ruling still allows government agents to gather evidence of criminal activity, should it surface during a religious service.