Metropolitan News-Enterprise


Wednesday, March 6, 2002


Page 1


Ninth Circuit Panel to Explore Constitutionality of Law Providing Tax Exemption for Parsonages


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals signaled yesterday that it may declare unconstitutional the federal law that allows clerics to receive housing from the religious institutions that employ them without paying taxes on the value thereof. 

In an unusual, but not unprecedented, order, the court appointed USC law professor Erwin Chemerinsky as amicus in a pending appeal dealing with the scope of the exemption.

The panel cited three U.S. Supreme Court  cases as authority for its action, the most recent of which was United States v. Dickerson, 530 U.S. 428 (2000), in which a law professor, known as a strong critic of the Miranda decision, was asked by the high court to brief the issue of whether that ruling was still good law.

Rev. Richard D. Warren and his wife are appealing a Tax Court ruling that Internal Revenue Code Sec. 107(2) permits a parson to exclude from taxable income only the fair market rental value of his or her dwelling.  The Warrens claim they have a right under the code to deduct all of their actual housing costs, while the government argued for the position taken by the court.

But Ninth Circuit Judge Stephen Reinhardt and Senior Judge James Browning, in their brief order yesterday, gave Chemerinsky, the Warrens, and the government 45 days to file supplemental briefs on whether the court can and should rule on the constitutionality of the exclusion and if so, whether the exclusion violates the Establishment Clause.

The order drew a pointed dissent from Judge Richard Tallman, who said his colleagues had no business wading into a constitutional issue that the parties didn’t argue in the Tax Court and didn’t want to argue in the Ninth Circuit. “It is…completely unnecessary and improper for us to decide this issue in this case,” he wrote, suggesting that Browning and Reinhardt had already decided to throw out the statute.

That drew a retort from Reinhardt.

“When judges ask for supplemental briefing on an issue, it does not mean, as the dissent mistakenly asserts, that they have decided to reach a particular result,”  he wrote. “The purpose of requesting briefing in this case is to obtain more information in order to make a more informed and reasoned decision about whether to address an issue and, if so, how the issue should be resolved.”

It would be irresponsible, the judge said, for the court to rule that Warren is entitled to a tax exemption, in any amount, if the exemption can only be based on a statute which is unconstitutional.

Chemerinsky said he anticipates that his brief will argue that the exemption does violate the First Amendment. He told the MetNews that he was asked several months ago, by a staff attorney for the court, whether he would accept the appointment and responded affirmatively. 

“I feel its our obligation as lawyers to accept” court appointments, he said.

Chemerinsky said he saw no problem with the procedure of appointing an amicus. The issue is important, he said, and probably could not be addressed in any other way  given the positions taken by the parties and the barriers to standing that probably preclude a citizen or taxpayer opposed to the exemption from challenging it in court. 


Copyright 2002, Metropolitan News Company