Most states and localities exempt church property from taxation. The U.S. Supreme Court upheld this practice in Walz v. Tax Commission of the City of New York (1970) as furthering the establishment clause of the First Amendment by helping to avoid “excessive entanglement” between church and state.
The city of Fredericksburg, Va., provides for a tax exemption for a “ministerial” residence, but it denied the exemption to New Life in Christ Church because the house’s residents were not ordained. Josh and Anacari Storms were employed by the church as youth ministers to students at nearby Mary Washington University.
Even though the church believed that the couple qualified as ministers because they performed “essential religious functions” for the church, a city circuit judge concluded that the Book of Church Order of the Presbyterian Church in America, with which the New Life in Christ Church was affiliated, limited the definition of minister to those who were ordained. The Supreme Court of Virginia refused to review the case. The church appealed to the U.S. Supreme Court.
On Jan. 18, 2022, the U.S. Supreme Court left the denial of the tax exemption in place by denying a writ of certiorari.
Justice Neil Gorsuch wrote a spirited dissent, in which he questioned how a city could be a better position to decide who was a minister than a church interpreting “its own faith tradition” and indicated that he would summarily reverse the lower court decisions. Gorsuch argued that absent proof of “insincerity or fraud,” the First Amendment “does not permit bureaucrats or judges to ‘subject’ religious beliefs ‘to verification.’” He cited the decision in Serbian Eastern Orthodox Diocese v. Milivojevich (1976), in which the Court had removed itself from controversies involving church law.
The decision might be subject to other challenges as well. A brief filed by the church noted, as did Gorsuch’s dissent, that the applicable state law in Virginia did not provide a formal definition for the term “minister,” leaving this determination to authorities. This gave government the kind of discretion that the Supreme Court had rejected in Fulton v. City of Philadelphia (2021) when it overturned a decision in which a city had exercised similar discretion in rejecting Catholic Social Services from providing foster case. The brief noted that, just as decisions such as Tandon v. Newsom (2021) had established that governments could not discriminate between secular and religious entities when enforcing social distancing requirements during a pandemic, so too, governmental entities should be applying neutral principles among denominations.
The fact that the Supreme Court permitted the Ethics & Religious Liberty Commission of the Southern Baptist Convention to file a brief as amici curiae on the same day that it denied certiorari suggests that the case may be appealed elsewhere. That means there is still a chance that judges will ultimately agree with Gorsuch that this case involves the “arrogant pretension” that secular officials can “serve as ‘competent Judge[s] of Religious truth.”