Walz v. Tax Comm’n of the City of New York

RESPONDENT:Tax Comm’n of the City of New York
LOCATION: New York City Tax Commission

DECIDED BY: Burger Court (1969-1970)

CITATION: 397 US 664 (1970)
ARGUED: Nov 19, 1969
DECIDED: May 04, 1970

Facts of the case

Frederick Walz, the owner of real estate in Richmond County, New York, brought suit against the New York City Tax Commission, challenging property tax exemptions for churches. Walz alleged that the exemptions forced him, as a taxpayer, to indirectly contribute to those churches.


Did the property tax exemptions violate the Establishment Clause of the First Amendment?

Warren E. Burger:

Number 135, Walz against the Tax Commission.

Mr. Ennis you may proceed whenever you are ready.

Edward J. Ennis:

Mr. Chief Justice and may it please the Court.

This is an appeal from a final order of the Court of Appeals of the State of New York, affirming an order for summary judgment obtained by the defendant, dismissing the complaint which asserts that the plaintiff, appellant here, is a citizen and a real estate taxpayer, who sought in adjudication that the constitutional and statutory provisions of the State in New York, which exempt from real estate taxation all the property of religious corporations used solely for religious purposes violates the First Amendment and the Fourteenth Amendment of the United States Constitution.

He asserts in his complaint that he’s a Christian not a member of any particular sect, and objects that the amount by which his taxes, his real estate taxes are increased by the exemption of all religiously owned property for use of religious purposes from taxations, constitutes an involuntary contribution by him to the activities of these religious organizations which violates his freedom of religion.

Before taking up my main argument which will be very brief because the principle that I assert is very simple, I would like to address one word to corporation counsel’s suggestion in the first point of his brief that the Court should either dismiss or affirm this appeal on the ground that the record is inadequate.

We submit to the Court that all of the facts required for a decision of this issue no matter how momentous it maybe, are present either in the pleadings or in the facts which are judicial notice.

It was the defendant who moved for summary judgment and the facts were quite sufficient to obtain a judgment of the Court of Appeals in favor of the defendant.

And the defendant is not in a good position here to assert that the facts are not sufficient for review by this Court.

The — all of the facts required for decision are present.

Potter Stewart:

Mr. Ennis, before you proceed with your argument, I’m a little curious about the whereabouts of the plaintiff in this case.

I refer particularly to VI of the appendix of the amicus brief of Mrs. Madelyn Murray O’Hare, in which it’s indicated that the post office couldn’t find Mr. Walz.

Edward J. Ennis:

Well —

Potter Stewart:

Did somebody else sign for this —

Edward J. Ennis:

Well, let me tell you what I know.

Potter Stewart:

— registered letter.

I wonder if he still–

Edward J. Ennis:

Mr. Walz is a member of the New York bar, and he’s taken the case to this stage and intended to argue the case.

He requested me to argue it and present his position in his behalf because he happens to be suffering from a very high blood pressure and frankly, he stated that he did not think that he emotionally could undertake the responsibility to present the oral argument to this Court.

I’ve known Mr. — I know Mr. Walz, he’s been in my office several times and I can communicate with him anytime I wish.

I mean —

Potter Stewart:

That satisfies my question, I just wondered if he was still around.

Edward J. Ennis:

And now, going to the merits of the argument, I do not intend to quote to this Court much of what had it said in the over 500 pages that the Court has written between Gobitis and Flast on the question of the meaning of the First Amendment.

I think it appropriate however that we approach our argument with the statement made by Mr. Justice Jackson speaking for the Court in the Barnett case which established that this flag salute have violated the First Amendment.

Now Mr. Justice Jackson for the Court stated that the task of translating the majestic generalities of the Bill of Rights conceived as part of the pattern of liberal government in the 18th Century into concrete restraints on officials dealing with problems of the 20th Century is one to disturb the self confidence.

These changed conditions from the laissez faire situation in the 18th Century for the government control of our century, often deprived precedence of reliability and cast us more than we would choose on our own judgment, but we act in these matters not by authority of our confidence, but by force of our commissions.

We cannot because of modest testaments of our confidence in such specialties as public education withhold the judgment that history authenticates as the function of this Court when liberty is infringed.

Approaching this question, it is the appellant’s submission that the plain words, the first ten words of the First Amendment of the Bill of Rights that Congress, which now includes the states, shall pass no law respecting the establishment of religion bars all age religion including the massive tax exemption from real estate taxes presented in this case.

I will not pause to lead the Court again as it has gone through its opinions through the course in the first Congress which produced these general words respecting an establishment of religion.

It is suffice to say that out of the narrower words introduced into the House, no law establishing religion and out of the still narrow words introduced into the Senate, no law establishing articles of faith.

Edward J. Ennis:

In the conference between the two Houses, in which Mr. Madison was a member of the conference, we extracted the words no law respecting an establishment of religion which the Congress adopted and the states adopted.

Now, this Court has said in Everson and in every case considered since Everson that the generalities of these words not only prohibit the establishment of a church, but they prohibit any aid to religion.

Only two words — only two sentences from the Court’s opinion in Everson which has been quoted by the Court in every opinion since.

The Establishment Clause of the First Amendment means at least this, “Neither a state nor the federal government can set up a church, neither can pass laws which aid one religion, aid all religions or prefer one religion over another.”

The appellant’s position very simply is that just as this Court has repeatedly stated and indeed in the last case in the Flast case, that of course the First Amendment forbids aid to religion and that any tax funds that any taxes be exacted or spent on religion.

That it’s the appellant’s submission that this exemption from real estate taxes is precisely the same as if the State of New York had passed a law stating that all religious property shall be valued, so that at least we might know its valuation and its increasing valuation, and shall be taxed like all other property.

But that upon application by the taxpayer, disclosing that it is a religious organization and that the property is used solely for religious purposes, these taxes should be refunded.

We submit to the Court that the exemption before us is no different, and that if this Court would strike down the hypothetical statute I’ve suggested, it should strike down the exemption statute of the State of New York.

Mr. Ennis, does this statute limit the exemption to Religious Corporation?

Edward J. Ennis:

No, Your Honor, the statute —

Part of a broader statute isn’t it?

Edward J. Ennis:

Of course, if the religious corporation is in the general provisions which exempts educational institutions, hospitals and the like, and it includes religious corporations.

We of course submit Your Honor, I’ll have a word to say about the suggestion that religion can be subsumed under charitable activities, but it is so far as the statute is concerned, included with these other classifications.

Warren E. Burger:

Would your argument go so far as to reach hospitals run by religious orders?

Edward J. Ennis:

Oh, no, no of course not Your Honor.

The hospitals, the asylums, the orphanages, the educational institutions, schools, all of these institutions which are run by religious organizations are exempt from real estate taxes by virtue of their function.

Our argument only reaches to property used exclusively for religious purposes.

Warren E. Burger:

Does that not assume that religious oriented schools are not teaching religion?

Edward J. Ennis:

No, no it does not at all Your Honor.

But the statute —

Warren E. Burger:

But you have no trouble I take it with the school which is teaching religion to young children at an early age or to college students at a later age?

Edward J. Ennis:

I have no trouble in exempting the real estate from taxation.

And in any event, Your Honor, the statute relieves us from this problem because the statute we’re addressing ourself to exempts only property which is used exclusively for religious purposes.

Now, we do not have to address ourselves to what might be a more difficult problem as is to whether a hospital run by a church institution, whether physical care is sufficiently permeated with religious instruction to render it suspect.

We don’t have to deal with that.

Could I ask you this question?

Supposing New York changed its statute and granted the exemption to every kind of charitable organization except a purely religious organization, would you think that would give rise to a free exercise question?

Edward J. Ennis:

No, Your Honor, I do not.

You don’t.

Edward J. Ennis:

The — I — I think that the constitution does not forbid the legislature to grant exemptions to charitable organizations, but only to religious organizations.

Edward J. Ennis:

It is our position, Your Honor, that if prayer and bible reading in the public school is an aid to religion, it’s inescapable that the practical economic financial aid of real estate tax exemption is an aid to religion.

This proposition is so simple that it is rather difficult to expand upon it.

Its very statement is its own proof.

Unless this Court is prepared to say that factually an exemption of pure property use purely for religious purposes is not an aid to religion, unless the Court is prepared to say that it must say that is an aid to religion which is unconstitutional.

I think I would like to say a few words about the defenses, if I may call it that or the arguments which the corporation counsel has presented in his brief on this subject.

And these are the defenses presented usually to support this awkward fact that we have in all of the states, this exemption, and although we’ve had it in all of the states for 180 years, it now for the first time comes squarely before this Court for consideration.

The first argument in support of it is the argument of history.

How is it that this exemption stands on the books of all the states for so long without having been challenged in this Court?

Of course, the answer I think is a tribute to the great political power of the religious organizations in this country that have been able to achieve that this exemption from taxes for so long.

Another reason is that when this started in the beginning of our republic, the tax question was a very minor one.

The tax question has only loomed large when in part as a result of tax exemption, religious organizations in this country have accumulated literally hundreds of billions dollars of property.

And now, with the increasing public services, social services that are required, the matter becomes acute as to whether this isn’t part of the real estate in the United States which constitutionally should be subject to tax.

And indeed, another simple argument is that history cannot turn aid into no aid not only real estate tax exemption, but it’s been common in our public schools saying public prayers and bible reading.

This has gone on since the beginning of the republic, but it only reached this Court in the last 20 years when citizens determined to raise the issue.

Take the Sunday store laws.

The Sunday store laws, as this Court in it cases — in its decision recognizes —


Edward J. Ennis:

This of course had a religious origin and yet, they went on with this religious justification, legislative justification was religious, they went on from the beginning of the republic until a few years ago and the Court in its opinion stated “We would strike these Sunday laws down as unconstitutional establishment of religion.”

If it were not for the fact that in the development of our country, a secular reason for these laws has supplanted the original religious purpose of the laws.

And the Court said that “If the purpose was aid to religion, these Sunday laws would’ve been stricken down and they were saved because the purpose has become secular.”

Now, — but it’s only as our country developed and people wanted to open up stores on Sunday, the stores that were involved that the question was presented to this Court, despite that fact that it was in its origins unconstitutional, although not tested.

I think that this takes care of the argument from history to the extent that it can be taken care of.

I do not mean to blink at the point that a practice which has existed for so long, it carries with it a certain historical momentum of its own.

But this Court is no stranger to striking down laws as unconstitutional which the American people have accepted for a long periods of time, until the time comes when a citizen properly raises the question, as I believe Mr. Walz has done, and requires that these laws be stricken down.

Now, the second point that Mr. Rankin makes, and it also has its interest, is that the exemption really supports the purpose of the amendment which was to prevent strike between the religion and the secular state that leaving the state alone in this respect promotes that neutrality which was one purpose of the First Amendment.

If the Court please, my answer to that is that taxing real estate used for religious purposes, like other real estate, is just as neutral as not taxing it.

There is no — there is not intended by this to promote any conflict with the church, and I cannot see how it will produce a conflict with the church to treat such property as all other real estate is treated.

Now, the third argument that Mr. Rankin refers to in his brief is also a common one.

That what the legislatures have done have considered religion like other charities which it exempts.

That it is true of course that religion until the more recent period of our history, took up the burden of charity.

Edward J. Ennis:

The alms houses, the hospitals, the orphanages, the old peoples homes, all of these in earlier days was largely left to religious private activity.

This of course is no longer the case and it explains, I think, why the legislatures have placed religious activities into the same statutory framework as other charitable activities, but it cannot satisfy the constitutional requirement that both the Congress and all of the legislatures are expressly prohibited from treating religion like other charitable activities.

The states and Congress are prohibited from this.

Now, another answer is that the prayer which this — the prayer of the public schools and the bible reading in the public schools which this Court has stricken down as unconstitutional, that promotes moral values, just as religious activity promotes moral values, but just as — that is not a sufficient basis to save the prayer the fact that it promotes a secular object, if you will, namely moral considerations, if it is not enough to save that the prayer, it is not enough to save the tax exemption.

Now, the last argument that’s made on this point by Mr. Rankin is that this Court has approved other exemptions.

For example, the selective service exemption where the Court excuses ministers or rather the statute excuses ministers and conscientious objectors and the Sunday laws, not the ones that the Court struck down, but those laws in which a state has chosen to give an exemption for the two people who observed the Sabbath and let them run their business on Sunday.

The distinction, we submit, is that the power of the Congress in the interest of national defense and general welfare, it doesn’t have to give those exemptions.

It did give them out of respect for acts of conscience for religious conscience, but it’s not been suggested by the Christian churches that the payment of real estate taxes would offend their freedom of religion in the sense of their freedom of conscience.

Surely, a church which recognizes that Caesar shall have what is his and God shall have what is His would not make the argument that to pay real estate taxes would violate their conscientious group.

They merely asked to be exempt for the payment of taxes, and I think this is a great distinction between these cases.

Now, I’m going to address myself in just very briefly to an argument that is not made by the City of New York and that is that this statute is required by the Free Exercise Clause.

That argument is made in the brief of the national counsel of the Churches of Christ in the United States of America by Mr. Tuttle, who’s here today to hear the argument.

Now, Mr. Tuttle relies for that contention that these laws are not only permissible but are required on the Murdock case and the Fallet case.

Now, as Your Honors will recall in Murdock, the Court stated that you could not place a license tax on the very activity of distributing religious literature by members of a religious sect whose — the essence of their religious activity was going from house to house, distributing and selling their literature.

But as Mr. Justice Douglas said in that case, this is quite different from the tax on property used for religious activities.

It is one think to tax a preacher’s property and another thing to tax his teaching.

We say that there’s a very obvious distinction between the direct tax upon the religious activity involved in the Murdock case and the tax on the land and the wooden stones which constitute the property of the real estate tax of religious property.

Warren E. Burger:

I have — I have some difficulty in that separation of the chapel from the teaching.

Is that your point that the chapel can be —

Edward J. Ennis:

Yes, my point is Your Honor that this Court in the Murdock and Fallet case that followed it, in stating that attacks directly upon the activity was unconstitutional because it did limit the free exercise religion that Mr. Justice Douglas for the Court, and Mr. Justice Frankfurter in his concurring opinion expressly distinguished that tax from the tax that we have here.

For example, Mr. Justice Frankfurter said in very plain words, “it is alien to our constitutional system to suggest that it exempts church held lands from state taxation.”

In other words, the Court itself has very plainly made the distinction from the direct exercise of religion not subject to a license task, and indeed, I hardly have to go further and state that if this argument were true, would it mean that the great real estate holdings of our press and our T.V. organization should not be subject to tax because they are engaged in the exercise of the freedom of the press?

It’s hardly distinguishable.

The land used by the New York Times to print its paper is just as much involved in the freedom of the press as the church building used in expressing religion.

Now, I would like to close my argument, if the Court please, by a one sentence statement from James Madison, whom this Court has recognized in many opinions as the very architect of the First Amendment.

When he’d retired as President to Montpeller, I had a chance to review all he had done and the attention he’d given to this important question of establishment of religion.

In his detached memorandum, which I hope Your Honors will again read because he has the fervor and eloquence on this matter which I can not match.

He indeed even goes so far in the detached memorandum as to say that the chaplains in the Congress and in the army and navy are establishments of religion, and should not be allowed.

And he concludes, as I will conclude my argument with one sentence, he says “It is safer to adhere to a right principle and trust its consequences than to confide in reasoning however specious in fear — in reliance upon a wrong one.”

I submit to Your Honor that the exemption of churches is aid to religion and is barred by the First Amendment.

Edward J. Ennis:

These various arguments which have been made to attempt to excuse it do not excuse it, and are form of specious reasoning which the Court or should not accept, which should hold as simple logic and the words of the constitution require that an exemption is as much an aid to religion as if the taxes were collected and returned upon application.

Thank you very much, Your Honor.

Warren E. Burger:

Thank you, Mr. Ennis.

Mr. Rankin.

J. Lee Rankin:

Mr. Chief Justice and may it please the Court.

It is the position of the City of New York that this case should either be dismissed as not presenting any substantial federal question in light of the record, or that it should be affirmed.

We have considerable difficulty with the position of Mr. Ennis and the Civil Liberties Union in their brief, because they appear to recognize that if you single out religious establishments or institutions and deny to them an exemption which you grant to other nonprofit, charitable, educational activities such as are allowed this exemption under this statute and under the constitution of the State of New York, you have serious problems.

They do not frankly say that it’s free exercise problem but I do.

As you will note in our brief, I do not assert that we reach a free exercise problem with regard to this exemption as it is granted.

But if you’re going to say that religious institutions, who have the same legal standing, an economic standing, are nonprofit, engaged in charitable or education activities are thereby to be singled out and told that they can not enjoy the same exemption by reason those activities as other people.

I do not see how you can face up to say that that does not inhibit religion in this country.

Now, I call to the Court’s attention and emphasize the history of this exemption, and I do not say that it is conclusive of on the Court, of course it is not, but it has great bearing, 200 years of a course of conduct by the people of this country and I challenge the statement that it’s just due to a great lobby.

To me, it is an action of the people of this country in recognition of the service and value of religion to sustaining this country throughout its various activities.

It is 200 years of universal consistent conduct, either in constitutional provisions or statutes and uniformed decisions sustaining, including the various actions of this Court some four times finding that there is not a substantial federal question in three cases, and not taking the fourth action.

But it is glibly assumed in the argument here that exemption is the same as aid to religion comparable to taxing and any careful examination of this situation will not bear that out.

It isn’t supported by the law of this Court, interpretations of the constitution with regard to taxation.

But before I leave the history, I should like to call to the Court’s attention the very real problem that you present the government in trying to maintain neutrality in neither advancing nor inhibiting religion.

If you say to the government, you must go in the City of New York to Saint Patrick’s Cathedral and assess and tax based upon the fair and reasonable market value with the highest use of that property, or go with me to Trinity Church down in lower Manhattan and tell us to do the same or any little chapel in outlying areas, Harlem, Bronx, Queens, Brooklyn, now it can be done.

But in that process, what do we do to the relationship between government that we’re trying to say that there’s a separation wall.

It’s difficult to imagine how much taxes we would assess against Saint Patrick’s, Trinity Church and some of the others.

On the other hand, I don’t want to minimize the effect upon the little chapel in the community which proportionately may have as much difficulty or more in meeting this assessment.

Now, how does this 200 years of history bear upon that?

It bears upon the fact of the way our people have lived in the pluralism of our religion throughout 200 years of experience in dealing with this very problem.

They have proceeded upon the assumption from the earliest days of the very same time that this establishment took place, that they did not have to provide the taxes for their place of worship because it was recognized by the people, their legislatures and the exemption was granted either in constitution or in legislation or in both.

Now, after 200 years with established parishes, many difficult financial problems otherwise, and 200 years of such experience of our people, all has to be changed overnight by a ruling of this Court and they have to find a way to either provide the taxes out of additional contribution by their parishioners, or move the church to some place that they can afford.

Mr. Rankin, why do you say this record is insufficient to decide the issue in this case?

J. Lee Rankin:

I think that it does not adequately show the effect of tax of — in tax exemption of this kind, or tax exemptions if you’re to assume that they are aid to an establishment on other taxpayers in the community.

This appellant had purchased a property for $100.00, I think he pays $5.47 something like that in taxes.

That’s a very skimpy record —

Well —

J. Lee Rankin:

— to act upon if you’re going to overturn something that’s been present for over —

That goes really to a question of a standing, doesn’t it?

Flast against Cohen, it seems to me pretty well laid that to rest?

Warren E. Burger:

If it’s a constitutional question Mr. Rankin, can the Court be concerned with the impact in the same way that you would on construction of the statute where no constitutional question were involved?

J. Lee Rankin:

Well, it seems to me that it gives the Court guidance and enlightenment insofar as you have information that is hard evidence in a record as distinguished from assumptions or inferences or whatever picture that counsel can portray to the Court with regard to the probable situation.

That is what I was calling attention to in regard to this first point.

This is an appeal is not here on discussion area of review?

J. Lee Rankin:

That’s right.

The next problem as I see it is the assumption in regard to the system of taxation.

And the question of whether an exemption is the same in consideration of aid to religion than it would if there was a tax.

It seems to me it’s clear that the exemption is neutral as distinguished from a tax which can be discriminatory in — very easily in many ways.

But beyond that, they say religious institutions do not pay their fair share of the burden of government.

Now, that is not a constitutional criteria, this Court has said that legislatures have the power and right to decide who shall be taxed dependent upon the question of whether or not two persons in exactly — precisely similar situations as to economic and legal conditions are treated differently by the government.

I do not think that if there was a mere exclusion as distinguished from exemption, this Court would be willing to accept that as an adequate distinction for constitutional purposes.

But there’s no question about what the Court, the legislature, could choose various types of persons who are not similar in economic and legal position, and decide to tax them and decide not to tax a religious house of worship.

That is the fallacy in this situation.

There is an assumption that religious institutions have to be taxed just like others, or there is aid.

There’s no proof of it and it doesn’t follow our law in regard to the imposition of taxes, and the power of legislatures to make decisions about who should be taxed and who should not.

It doesn’t deal with what other taxes churches pay in the course of the whole tax structure of the community, either New York or other communities that have similar exemptions throughout the country.

It just says that there must be a sharing in the cost of maintaining these benefits and it’s entirely inadequate to meet the problem from a constitutional standpoint.

How would you say about a statute as far as the New York would appeal to this exemption that are all charitable corporations, overall, a charitable corporation is nonreligious charitable corporation and let the stand only with respect for the religious corporation?

J. Lee Rankin:

I would find much more difficulty with regard to that, except that you do have the general principles of tax law allowing the legislature to decide that a corporation for instance, all corporations should pay taxes, no corporations should pay taxes but all natural persons pay taxes, the Court said that any number of times.

So, the legislature has a power and right to decide that the funds necessary to maintain the government, maybe to select — taken from certain selected groups providing you don’t violate this principle that I’ve just stated as a matter of constitutional law.

Now, the problem is whether you’re getting into the question of advancing or inhibiting religion in that particular area and that’s the only problem that that kind of a situation raises.

On the other hand, if they are similar in regard with their functions to charitable and educational institutions and nonprofit making, and then you say “Just because you’re religious, you can have any exemption.”

It seems to me you’re singling them out in the same manner in a way that the Constitution does not permit.

Warren E. Burger:

Mr. Rankin, when I put the question to Mr. Ennis about church operated schools where religion is regularly taught, understandably, he wants to argue the case he has here and not some other case, but I wonder if you’d care to comment on whether a court could find that such a church operated school which received tax exemption was not receiving the same kind of in quotation marks “aid to religion” that is argued is now extended to the churches?

J. Lee Rankin:

Well, it is the position of the City of New York that it is — as I view it and I frankly say, I’m not familiar with all the religions in this country.

I do consider one of the great assets of this country is the fact we have pluralism in religions, that you can start any religion without interference by government.

But the religions I know, a number of them, all have an inherent part of the religion itself that you shall care for the sick, that you shall care for orphans and the elderly, you shall provide for them.

J. Lee Rankin:

The ones I know have a “Might” box or a collection time after time throughout the year to support those activities.

Some of them I know have a deacon’s fund administered within the church structure itself to care for the poor and the unfortunate and it is a part of the doctrine and beliefs of the church.

You can go through a whole cross section of them, that people who have that religion will respect it, believe it and that is part of the doctrines that you not only believe in but you contribute to as a part of your worship, and you conduct that in the church, in the house of worship and the solicitation is made there almost every week, at least periodically.

And many churches also have provision for their own institutions that they maintain, and the parishioners are asked to contribute to them as a part of their religious belief and an obligation as a part of that religion.

William O. Douglas:

Your argument therefore I gather, is directed to position that as a consequence the government would not constitutionally be able to finance a church school or a church hospital then?

J. Lee Rankin:

I think that where you finance, a church school or hospital, you will do it, where this Court will permit it by the Government.

It will be in connection with case like Allen or other situations where you are carrying out the secular function, aiding of secular function which is not directly advancing the religion.

But I don’t think that you can say that you can separate out of religion the elements of charity, or assistance to education, or other aspects that are the heart of it and have been for a thousand years.

Byron R. White:

So, you suggest I take it that the government should make a direct grant to a church to carry on charitable activity?

J. Lee Rankin:

No, I think you’ve ruled that kind of an activity out.

Byron R. White:

Well, but you’re arguing now is that you can grant tax exemption though, because the churches are engaged in charity?

J. Lee Rankin:

Well, but a tax exemption is quite different from a direct taxing and imposing a tax upon individual in order that he contribute to the support of particular religious activity.

A tax exemption may not mean anything to Mr. Walz or to me as a taxpayer in New York City or many others; it is neutral in its effect.

It is entirely different by nature under tax laws, under tax constitutional principles from the other.

Warren E. Burger:

Mr. Rankin, if the appellant were to prevail with his arguments that this constitutes an aid to religion, to the establishment of religion, would you see any bearing on that kind of a ruling and the allowance of deductions for contributions to church which is now creature of statute and governed by regulations of I think most of the states and certainly the federal government?

J. Lee Rankin:

Well, I —

Warren E. Burger:

In other words, could that exemption survive if the appellant prevailed here?

J. Lee Rankin:

I can see many problems in that area if the appellant were to prevail here, because as Professor Bitkerr develops in his article in the Yale Law Journal, you would have the similar problem with regard to the Internal Revenue Act, the various provisions that Mr. Chief Justice, you’re describing and tax laws throughout the federal structure as to whether or not if this is aid to education, aid to religion, that would not also be aid to religion.

And you would conflict immediately in that whole area with those laws.

I think it would cause a reexamination of the entire tax structure and the exemptions that are allowed in connection with religious charitable and educational activities and gifts as state benefits.

Finally, I’d like to say that I think this would have a great impact upon the social structure of this country if the appellant should prevail in this action.

I think it would —

Potter Stewart:

Speak a little louder, Mr. Rankin.

J. Lee Rankin:

I think it would penalize the small churches. The great establishments would be able to adjust to it.

The little parish church in the core city, in the country side that does not — is not able to fall back upon the general congregations throughout the country.

Warren E. Burger:

I think we’ll stop until 12:30 Mr. Rankin? [Luncheon Break]

Mr. Rankin, you may proceed.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

I’d like to conclude my argument very briefly.

It seemed to me that one of the things that the Court would like to examine which I have put there in connection with this case, is what has happened after 200 years of this exemption with regard to the fears that this Court has described that brought about the provisions in the First Amendment about establishment and free exercise.

J. Lee Rankin:

Have any of those feared conditions that were the basis for these provisions of the First Amendment come about or appear on the horizon in connection with this matter?

Your — the Court will recall its reference to various things, the fears that brought about this amendment, destruction of the Government, degradation of religion, persecutions that were occurred trying to obtain political religious supremacy for various religions, the establishment of a particular governmental faith which was disestablished about the same time as the exemptions were passed by the legislatures.

The various persecutions and attacks upon individuals who didn’t support the established church, taxes for the payment of minister’s salaries and the building of churches.

There have been at least one case this Court passed upon in regard to taxing the Bill of Church and of course it was stricken down.

And we find none of those particular tiers of — that brought about the amendment that are either present in our situation or after 200 years or as I can see it, threat.

We have great pluralism in religions of all kinds of beliefs, either of a God or no God, and you can almost hardly imagine the range that they cover in this country, and as I said before is one of our great assets.

But if you decide to sustain the appeal in this case, we are going to have Government up to its ears in religion.

In religious — in examination of all these exemptions that are provided in the tax laws for religious institutions, because we will have to know what they make, what their properties are worth, what they claim they’re worth.

We will have all kinds of certiorari contests like we do with other people in the community, about the value of their church property and that the taxes are too high as compared with other people, and we will have to know what moneys they take in and all of those various things.

So instead of being neutral, as this exemption permits and provides, we will be so engrossed in religious activities which is the very thing, I submit to you, that this country has been trying to provide against by this amendment, and this Court has used such great care in order to provide and insist upon a separation of Church and State.

Warren E. Burger:

Thank you, Mr. Rankin.

Edward J. Ennis:

I’d like to make just two statements if it pleases the Court.

One that the corporation counsel has gone outside the record to tell the Court some knowledge he has about the value of Mr. Walz’s property and how much his taxes were.

I don’t have that information and in the affidavit, a five-page affidavit in support of the motion for summary judgment, the City of New York which could’ve easily have the information available about the value of that property did not choose to make that point.

I don’t think that should be taken into account.

And about this specter that the corporation counsel raises that if we have to value the property of churches for real estate tax purposes there is going to be a lot of certiorari proceedings in the like.

Very well, one of the socially undesirable factors in the exemption of church property is we don’t have any idea of what the value of such property is, and there’s no reason we shouldn’t.

It’s not true to suggest that knowledge is un-neutral or hostile, that it would be a good thing if we know the value of the — increasing value of the property of religious organizations in the United States, why not?

Thank you, Your Honor.

Warren E. Burger:

Thank you, Mr. Ennis.

Thank you for your submission.

Thank you, Mr. Rankin for yours.

The case is submitted.