Neil Gorsuch Wanted US Supreme Court To Overrule Virginia Courts On Local Real Estate Tax Issue

Clergy housing is back in the news as Supreme Court Justice Neil Gorsuch dissented from the Court’s decision to not hear the appeal in the case of Trustees of the New Life in Christ Church v. City of Fredericksburg.  The economic issue was real estate tax exemption for a residence on Church property occupied by Josh Storms and Anacari Storms.  Justice Gorsuch sees it as a matter of bureaucrats and judges subjecting religious beliefs to verification.  The real estate exemption turned on whether  Josh and Anacari can be considered ministers under the Virginia statute that exempts parsonages.

The Issue

Looking at it from the viewpoint of the City it is pretty simple.  Josh and Anacari are living in a house owned by New Life.  Are Josh and/or Anacari “the minister” of the church, which will qualify the residence for exemption from property taxes?   The statute says “the minister”, but the Supreme Court of Virginia in 1971 ruled that a religious body could have more than one minister.  Then when you look at a recent bulletin of New Life on page 5 you see a table which includes contact information that I am omitting, it looks like this:

Pastors

• Pastor Sean Whitenack
• Pastor Douglas Kittredge
• Pastor Sam Capitano
• Pastor Skip Tyler

College Ministry

• Josh Storms
• Anacari Storms

Then come the elders.

According to the City the guys up top might qualify as “the minister” but Josh and Anacari are not ordained as teaching elders or pastors, do not exercise sacramental of administrative authority over the congregation and are not “set apart as the leader”. The Circuit Court of the City of Fredericksburg agreed with the City and the Supreme Court of Virginia did not find any reversible error.

So New Life decided, as they say, to make a federal case out of it.

The Constitutional Issue

First Liberty Institute and the Center for Law and Religious Freedom of the Christian Legal Society provided New Life with representation.  The concern is that the City should not have been looking behind New Life’s representation that Josh and Anacari were ministers.

When the New Life In Christ Church claimed the property tax exemption for a residence occupied by two of its ministers, the City of Fredericksburg conducted an independent inquiry into the Presbyterian Church in America’s Book of Church Order to determine whether the ministers actually are “ministers” under church doctrine. The City never challenged the sincerity of the Church’s belief that the ministers are, in fact, ministers. Instead, the City denied the exemption because it read the Book of Church Order to confer that designation only on ordained church officials with specific leadership roles.

Supporters

Four amicus briefs show a heart warming level of ecumenism.  We have the

• Coalition For Jewish Values
•  American Association of Christian Schools and Association of Christian Schools International –
• Assembly of Canonical Orthodox Bishops of the USA, Diocese of the Mid-Atlantic of the Anglican Church in North America, Columbia Union Conference of Seventh-Day Adventists, Evangelical Council For Financial Accountability, The Family Foundation, International Conference of Evangelical Chaplain Endorsers, National Legal Foundation, and Pacific Justice Institute
•  Ethics & Religious Liberty Commission of the Southern Baptist Convention, Christian Life and Public Affairs Committee of the South Carolina Baptist Convention, Southern Baptists of Texas Convention and Tennessee Baptist Mission Board  .

There was one more that actually kind of shocked me. There was an amicus brief from Kentucky, Alabama, Arizona, Arkansas, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas and Utah. I figured they were going to be supporting their sister state in not having the federal courts tell them how to run their property taxes. They were also with New Life.

New Life Church allows its two college ministers to live on a church-owned property and use that house as a place of worship and religious gathering. These two individuals are ministers according to the only authority that matters: the governing body of New Life Church.  (Emphasis added)

The Dog That Did Not Bark In The Night

That  “only authority” statement shows a strong bias in favor of a congregational polity.  Arguably at least there is another authority.  That would be the Presbyterian Church in America. When I have a tax story that touches on sports I always worry that I will get the sports part wrong.  It is worse with churches, because they are so complicated. I contacted PCA and I was told that there was nobody there who would comment on the case.  Also they did not file an amicus brief.  From the various filings I was unable to determine whether anybody asked them.

The argument that the government has no say in who is a minister breaks down a bit when there is a benefit associated with being one. It is a question of whether you are a minister for purposes of that law.  And that can vary from state to state.  If you would like to be ordained so you can legally perform your sister’s wedding and she has her heart set on the marriage being done by a Jesuit priest that will take you eight to thirteen years.  If she will settle for a minister of the Universal Life Church, it is much, much quicker and easier.  But you probably won’t be able to have the ceremony in Virginia.

What The Unmasked Man Had To Say

I have to note in passing that Justice Gorsuch unlike the other justices is not masking up just so you know that I am paying attention. Justice Gorsuch restated the argument of New Life:

The church tried to explain that the City misunderstood its traditions and practices. The church responded that, yes, women can and do serve as ministers. It acknowledged that “in order to deliver sermons” a minister in its tradition must be ordained but nothing in its rules or the Book of Church Order “prohibits a particular church from hiring ministers to serve as messengers and teachers of the faith” without ordination. Instead, the church explained its understanding that “Section 12 of the Book of Church Order provides each church rather broad authority to govern its own affairs which . . . include the ability to hire ministers to cater to specialized groups, such as youth.”

He then invokes the Framers

The Framers of our Constitution were acutely aware how governments in Europe had sought to control and manipulate religious practices and churches. They resolved that America would be different. In this country, we would not subscribe to the “arrogant pretension” that secular officials may serve as “competent Judge of Religious truth.”

He doesn’t get into that at that time, several states had and continued to have established churches and that the Establishment Clause was not invoked against a state until 1947.

Experts

Samuel Brunson, author of God And The IRS, was too swamped to respond, but he did refer me to his twitter feed which is pretty critical of Justice Gorsuch.

If you want to dig into the history of tax exemption for parsonages you should really check out Professor Brunson’s critique of the historical analysis the Seventh Circuit did in ruling that Code Section 107(b) – exclusion for cash housing allowances to ministers – is constitutional. God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (if Constitutional) Tomorrow.

I also heard briefly from Edward Zelinsky, author of Taxing The Church,

I have two observations. First, neither Virginia court wrote a substantive opinion addressing the merits.

Second, determining who is a minister is an entangling enterprise, as the critics of Code Section 107 have pointed out. We should not be surprised when such entanglement occurs in the context of state property taxes.  

Seems Like Old Times

The amicus briefs both in the number and sometimes identity of supporters and their overall tone brought back memories of the fight over the constitutionality of the income tax exclusion for cash payments in lieu of housing to ministers. A little noted story is that the Freedom From Religion Foundation took up that struggle at the urging of Robert Baty, a retired IRS appeals officer who was appalled at college basketball coaches getting ministerial housing allowances, because in their faith tradition everybody is a minister.

The main reason that the Freedom From Religion Foundation did not appeal the 2019 decision by the Seventh Circuit on the constitutionality of the housing allowance income tax exclusion is the composition of the Supreme Court.

We have full confidence in the legal merits of our challenge of the discriminatory pastoral housing allowance privileges. The IRS code preferentially favors the clergy as a special class, while penalizing those of us who are similarly situated in other 501(c)(3) organizations, particularly secular groups such as the Freedom From Religion Foundation that work to emancipate our society from religious dogma. It also penalizes ordinary taxpayers.

We did not feel the same confidence, however, in how the current Supreme Court would rule in our case, had we appealed. After “counting heads,” we concluded that any decision from the current court would put the kibosh on challenging the housing allowance for several generations.

It would have been interesting to see what Gorsuch would have said about that one.

Reaction

As noted the Presbyterian Church in America, the denomination that New Life affiliates with declined to comment.  I also did not get anything out of the Treasurer’s office of the City of Fredericksburg. First Liberty Institute issued a press release quoting CEO Kelly Shackelford.

This is a travesty, and it is dangerous. If a government bureaucrat can determine theology and tell a church who is or is not a minister, we are in trouble. We’re disappointed that the Supreme Court allowed this dangerous abuse of government authority to stand.

Pastor Sean Whitenack of New Life issued an update – Sovereign Disappointment And Sovereign Trust -.  He starts out on an up note

“For the righteous will never be moved; he will be remembered forever. He is not afraid of bad news; his heart is firm, trusting in the LORD. His heart is steady; he will not be afraid, until he looks in triumph on his adversaries.” (Psalm 112:6–8, ESV)

Other Coverage

Paul Streckfus printed Gorsuch’s dissent in his EO Tax Journal 2022-15.  He notes:

While the Supreme Court denied certiorari in a Virginia tax case involving a church, Justice Neil Gorsuch dissented to the denial of certiorari. His dissent may carry weight in future cases involving similar issues. Counsel for the church has called the Virginia decision denying a parsonage tax exemption “a travesty.”

Taft Coghill of the Free Lance Star has Supreme court refuses to hear city church tax case, lower court ruling stands.  He has a quote from John Rife of Tax Authority Consulting Services

Virginia law provides a tax exemption for the church minister’s own residence, not every residence a church may own. It’s up to the church, like any other taxpayer, to provide the evidence to back up its claim for a tax exemption.

Michael Gryboski has Religious beliefs shouldn’t be subject to ‘verification,’ Justice Neil Gorsuch says in dissent on The Christian Post.

Pete Williams of NBC has Supreme Court justice blasts Virginia city over refusing tax exemption for church.

Michael Lee of Fox has Gorsuch writes scathing dissent in church tax case, saying religious beliefs not subject to ‘verification’.

Alexandra Jones has Gorsuch balks at rejection of religious tax exemption case.

---

Originally published on Forbes.com.