My friend Deana Holmes had such a strong reaction to a recent article in The Atlantic – Should Courts Get To Define Religion? that I invited her to write a guest post.  Dee was trained as a lawyer but now works on technology for a “too big to fail” bank. Dee is an avid Hovindologist.  Here she is with my friend Jonathan Schwartz covering the aftermath of the second trial that never happened last year.

That’s enough introduction.  Here’s Dee.


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The Atlantic recently posted an article on its website with the scare headline:  “Should Courts Get to Define Religion?

The long and the short of it is that the National Shrine of Our Lady of La Salette in Attleboro, Mass., had for a long time been completely tax exempt. This included the shrine itself, its bookstore, maintenance shed and wooded acreage. The city of Attleboro, feeling the pinch of leaner times, decided it would interpret the Massachusetts statute governing tax exemptions rather more tightly than it had done so in the past and thus, in 2013, presented the shrine with a $92,000 tax bill for the bookstore, the maintenance shed and the wooded acreage. The shrine paid up but proceeded to appeal to the Massachusetts Appellate Tax Board, which found for the city.  The shrine appealed and oral arguments were heard in April before the Massachusetts Supreme Judicial Court.

It’s probably a good idea to take a look at the statute in question, which is a little long-winded:

Eleventh, Notwithstanding the provisions of any other general or special law to the contrary, houses of religious worship owned by, or held in trust for the use of, any religious organization, and the pews and furniture and each parsonage so owned, or held in irrevocable trust, for the exclusive benefit of the religious organizations, and including the official residences occupied by district superintendents of the United Methodist Church and the Christian and Missionary Alliance and of the Church of the Nazarene, and by district executives of the Southern New England District of the Assemblies of God, Inc., Unitarian?Universalist Churches and the Baptist General Conference of New England, and the official residence occupied by the president of the New England Synod of the Lutheran Church in America, Inc., and the official residence occupied by a person who has been designated by the congregation of a Hebrew Synagogue or Temple as the rabbi thereof, but such exemption shall not, except as herein provided, extend to any portion of any such house of religious worship appropriated for purposes other than religious worship or instruction. The occasional or incidental use of such property by an organization exempt from taxation under the provisions of 26 USC Sec. 501(c)(3) of the Federal Internal Revenue Code shall not be deemed to be an appropriation for purposes other than religious worship or instruction.

The key portion here is “but such exemption shall not, except as herein provided, extend to any portion of any such house of religious worship appropriated for purposes other than religious worship or instruction,” which, when linked up to the specificity of “pews and furniture” and “exclusive benefit of the religious organizations” tends to lend itself to the tighter reading that the city of Attleboro seems to be putting on the statute.  And the Appellate Tax Board agreed:

First, it is immaterial whether the many activities taking place at the subject property furthered the appellant’s stated charitable purposes if they did not constitute “religious worship or instruction” within the meaning of Clause Eleventh. While those uses, if consistent with the appellant’s stated purposes, may qualify the subject property for an exemption under Clause Third, they do not qualify the subject property in its entirety under the much narrower provisions of Clause Eleventh.

The Appellate Tax Board also discarded other similar cases, distinguishing them from the current case, and then latched on to what it considered to be a similar case:

This case was much more similar to Rudrananda Ashram of Boston v. Assessors of Cambridge, Mass. ATB Findings of Fact and Reports 1981-299. In that case, which involved a 17-room building housing a chapel, meditation and classroom areas, a minister’s room, kitchen and dining areas, and at least six rooms occupied by residents in exchange for monthly rent, the Board found that “significant portions were in fact used for other than religious purposes.” Although that case ultimately turned on a jurisdictional issue, the Board observed that the appellant would have lost on the merits also, as it had failed to present evidence “which could have been utilized by the Board in arriving at an” apportioned assessment.

(See pages 90-93 in Appellate Tax Board Cases Book 2A 2015 for a fuller discussion)

Now there is no way to tell where the Massachusetts court is going to go with this, although the question of “who decides the purpose is religious” is before the court:

In oral arguments before the Supreme Judicial Court last week, attorney Diane Tillotson, who represents the shrine, argued it is up to the religious institution to decide what parts of its property fulfill a religious function.

“Are there no limits that it has to be left to the religion to decide?” asked Justice Barbara Lenk. “I mean, for example, suppose there were a profit-making book publishing company, only portions of which seemed to be on spiritually related subjects.”

“I think the inquiry, your honor, has to be: Is the property’s dominant use for religious purposes?” Tillotson replied. “And if the answer to that question is yes, then the question becomes: Are these other activities, whether they’re charitable or the running of a bookstore, are they — is there an appropriate nexus?”

And this is where the Atlantic article, in my opinion, goes off the rails.  The author, Michael O’Loughlin, seems to believe that this case would be allowing the state of Massachusetts to decide what is and isn’t a religious practice. I think O’Loughlin is grossly overstating a fear that the state will be deciding on religious practices.  Certainly it is a basic presumption of First Amendment law that the government, in general, should not be deciding religious matters. (It was, in fact, one of the first things I learned in Constitutional Law back in law school.) But given the way the Massachusetts statute is written, and the court cases discussed by the Appellate Tax Board, it does appear that a tight reading of the statute is legitimate and it does not infringe on religious practice.

O’Loughlin also engages in a bit of scaremongering when he says this could affect the entire nation because of the influence of state supreme courts.  He’s right, but he’s also very, very wrong.  The reason this case is a problem in Massachusetts is due to the way the Massachusetts statute is written.  Here, for example, is the statute for my state of residence, Arizona:

42-11109. Exemption for religious property; affidavit

A. Property or buildings that are used or held primarily for religious worship, including land, improvements, furniture and equipment, are exempt from taxation if the property is not used or held for profit.

Consequently, I believe O’Loughlin overstates his case—other states’ statutes are written differently and in any case, it can’t be said that other states will give deference to a Massachusetts Supreme Judicial Court interpretation of a convoluted Massachusetts law.

If I were a betting woman, based on the information I know now, I would suggest that the court is going to find in favor of the city of Attleboro, but will suggest strongly in its opinion that this can be fixed by legislative action. According to the WBUR story, we should know soon how the court will rule, as some justices are retiring this summer and a decision is expected before then.

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Dee provided a bit of a footnote on La Salette which certainly adds to the color.

Our Lady of La Salette is an 1846 vision of the Virgin Mary by two French shepherds, Maximin Giraud and Melanie Calvat, in 1846. While the vision is an approved apparition of the Catholic church, the later activities of the visionaries are not approved and unlike Bernadette Soubirous, they are not saints or blesseds.  Giraud at one point endorsed a liquor based on the name of his apparition, while Calvat bounced from one religious order to another before finally settling down and living a secular life in Italy. She died in 1904.

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Peter J Reilly blogs on tax issues including many posts on religious property tax issues.