Amicus Curiae Brief — Walz v. Tax Comm'n of City of New York

e— maeeriati

Fi LE Ae PY es rey US

No. 135 OCT 211969

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

FREDERICK WALZ,

Appellant,

—against—

TAX COMMISSION OF THE CITY OF NEW YORK,

Appellee

Appeal from the Court of Appeals

of the State of New York

BRIEF OF PROTESTANTS AND OTHER AMERICANS UNITED

FOR SEPARATION OF CHURCH AND STATE

AS AMICUS CURIAE

Franklin C. Salisbury

1518 K Street, N. W.

Washington, D. C. 20005

Tel. No. (202) 783-3617

Attorney for Amicus

Washington, OC. - THIEL PRESS - 202 - 393-0625

(i)

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ..........+++++5: 1

STATUTE INVOLVED ..... 22... cc cece cece renee nee 2

THE QUESTION PRESENTED ..............2--0 eee: 2

STATEMENT OF THE CASE .... 1.1... cee cece ee eeee 3

SUMMARY OF ARGUMENT ........... cc eeeeeceees 3

: Perr rer rere re sre rere st Cre rst 4

oo ee ee ee eee es ee ee 13

TABLE OF AUTHORITIES

CASES:

Abington School Dist. v. Schempp, 374 U.S. 203 (1963) .... 8, 10

Bell’s Gap Railroad Co. v. Pennsylvania, 134 U.S. 232

nr rere ere ere rere ee eee 12

Cantwell v. Connecticut, 310 U.S. 495 (1936)............. 5

Carmichael v. Southern Coal & Coke Co., 301 U.S. 495

orererr re Tee rer riers Ce ee eT ee Tee 5, 10

Church of the Holy Faith v. State Tax Commission, 48 P.2d

a. ee re are 6

City and County of San Francisco v. McGovern, 152 P. 980,

Pe Ce Cha da wh caeew sca wean een ae 6

County of Santa Clara v. Southern Pacific R.R.Co., 18 F.

385, 400 (9th Cir., per Associate Justice Field, 1882),

SE, UT Ts PP UD nek cca esi Sete reweces 7

Commonwealth v. Y.M.C.A., 76 S.W. 522, 523 (Ky., 1903).... 6

Fellowship of Humanity v. County of Alameda, 315 P.2d

oe See 6

Garrett Biblical Institute v. Elmhurst State Bank, 163 N.E.

Se ee eT ere ee eh ee ee 6

General Finance Corp. v. Archetto, 176 A.2d 73, 76-79

(R.I., 1961), appeal dismissed, 369 U.S. 423 (1961)....... 6, 8

Gibbons v. District of Columbia, 116 U.S. 404 (1886) ....... 7,9

LaFevre v. Mayor of Detroit, 2 Mich., 586, 592 (1953) ...... 5

re ane cra

(ii)

Lundberg v. County of Alameda, 298 P.2d 1 (Cal., 1956),

COUNINIOE, Tike TAU Dae CRP cw ccc recs esccaceciva 8

McCollum v. Board of Education, 333 U.S. 203 (1948) ...... 7

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ........... 91

Murray v. Comptroller of the Treasury, 241 Md. 383, 216

A.2d 897 (1966), cert. den., 385 U.S. 816 (1966)... ..... 9

Nichols v. School Directors, 93 Ill. 61, 64 (1879)... ........ 6

Panhandle Oil Co. v. State of Mississippi ex rel. Knox, 277

PEED Ka canehuvaucehansGn0vubeses eden 12

Sisters of Holy Cross v. Town of Brookline, 198 N.E. 2d

SG CUR Sighs waked Nebpie bh Wehbe ee xaos 6

Sonzinski v. United States, 300 U.S. 506 (1937) ........... 10

Sovereign Camp W.O.W. v. Casados, 21 F.Supp. 989 (D.C.

N.M., 1938), affirmed, 305 U.S. 558 (1938) ............ 7

State v. Alabama Educational Foundation, 163 So. 527, 530

PTT ee ee ee Cee Teer eee 6

State ex rel. Reynolds v. Nusbaum, 115 N.W.2d 761, 766

Cis SEE Awe k Oboe eA DES EESR NS 5 be UO KR CES 6

Swallow v. United States, 325 F.2d 97 (10th Cir., 1963),

cert. den., 371 U.S. 950 (1963), rehearing denied, 372

of Gf | PTET Te TT TCU TT TTT Tee Tee 7,8

Trinity Church v. City of Boston, 118 Mass. 164, 165

| ee rere rar a ee ae 5

Trustees of the First Methodist Episcopal Church, South v.

The City of Atlanta, 76 Ga. 181, 192, 196-197 (1886)..... 6

Trustees of Griswold College v. State, 46 lowa 275, 282

io, eee eee ee reer eee ee eee Te eee eS 5

United States v. Department of Revenue of State of Ill.,

202 F.Supp. 757 (D.C.N.D., Ill., 1961), affirmed, 371

0% [, rrererrr errr re ee aeee ee Tee

Williams v. Baltimore, 289 U.S. 36 (1933) ............45- 5

Y.M.C.A. of Omaha v. Douglas County, 83 N.W. 924, 926

2 Benn eran ae 6

a

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STATUTES AND CONSTITUTIONS:

New York Real Property Tax Law, Sec. 420. Subdiv.1 ..... 2,4

New York State Constitution, Article XVI, Sec. 1 .....---- 2,4

United States Constitution, Article 1, Sec. 8 2... 2 eee eee 10

United States Constitution, Amendment 1 .....-------- 2,3,4

United States Constitution, Amendment 14 ........++-+-- 2,3

OTHER AUTHORITIES:

Church, State and Freedom (Beacon Press) Leo Pfeffer (1967)... 2

The Churches: Their Riches, Revenues and Immunities

(Robert C. Luce, Inc.) Martin A. Larson and C. Stanley

Lowell (1969)... 2... cece ee eee eee eee eee nees 12

Should Churches be Taxed? (Westminster Press) D.R. Robertson

Fe COR OOH

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 135

FREDERICK WALZ,

Appellant,

—against—

TAX COMMISSION OF THE CITY OF NEW YORK,

Appellee

Appeal from the Court of Appeals

of the State of New York

BRIEF OF PROTESTANTS AND OTHER AMERICANS UNITED

FOR SEPARATION OF CHURCH AND STATE

AS AMICUS CURIAE!

INTEREST OF THE AMICUS CURIAE

“Americans United,” incorporated as Protestants and

Other Americans United for Separation of Church and State,

is a nonprofit, educational corporation organized under the

‘All parties have consented in writing to the filing of this brief.

2

laws of the District of Columbia and is a national organiza.

tion of over 100,000 members interested in the preservation

of religious civil rights guaranteed the people by the consti-

tutional principle of separation of church and state. The

sole purpose of the group is the defense of religious liberty

under the religious liberty clauses of the state and Federal

constitutions. ‘“‘Americans United”’ and many of its mem-

bers have suits pending in various courts seeking redress for

alleged infringements against their constitutional right as citj-

zens and taxpayers to be free of “establishment of religion.”

Americans United fears clerical establishment may be re-

stored through tax exemption of the church in its many

facets. The “‘church” today is increasingly involved in busi-

ness, welfare, and political activities sheltered by various

forms of tax exemption that give it a power not enjoyed

by other persons and groups. This growing power is at the

expense of religion, derogatory of religious liberty and un-

fair to interests not similarly exempt from “taxation.”

STATUTE INVOLVED

Article XVI, Sec. 1, of the New York State Constitution

and Sec. 420, Subdiv. 1, of the Real Property Tax Law of

New York State which authorize tax exemptions for real

property owned by religious organizations and used exclu-

sively for religious purposes.

THE QUESTION PRESENTED

Whether Article XVI, Sec. 1, of the New York State Con-

stitution and Sec. 420, Subdiv. 1, of the New York Real

Property Tax Law, permitting tax exemptions for the real

property owned by religious organizations and used exclu-

sively for religious purposes, violate the religious clauses of

the First and Fourteenth Amendments to the Constitution

of the United States of America.

?For further description of “POAU” see Leo Pfeffer, Church, State,

and Freedom (1967 Beacon Press), p. 234.

_—

3

STATEMENT OF THE CASE

Frederick Walz is a resident owner of real property in the

County of Richmond in the City of New York. He seeks a

court determination that Article XVI, Sec. 1 of the New

York State Constitution and Sec. 420, Subdiv. 1, of the

New York Real Property Tax Law unconstitutionally grant

tax exemption to religious corporations on real property

owned by them and used exclusively for religious purposes.

The grounds for such complaint are that such exemption

“constitutes an involuntary payment by plaintiff to the

aforementioned religious organizations, in violation of plain-

tiff’s right of religious freedom” and confiscates his property.

SUMMARY OF ARGUMENT

A state’s power to tax or to exempt from tax church

property used exclusively for religious purposes is not one

that is subject to the limitations of the religious clauses of

the First Amendment to the Federal Constitution. The

power to tax or to exempt from tax is one of those resid-

ual powers of sovereignty that remained with the states un-

less clearly denied them by the United States Constitution.

If a state in its discretion chooses to exempt houses of

worship from tax, this is a legitimate use of its taxing au-

thority and does not constitute an act respecting establish-

ment of religion. The “no-establishment” clause of the First

Amendment, made applicable to the states by the Fourteenth,

does not impose on the states a mandate to tax houses of

worship. Nor does the “free exercise”’ clause of the First

Amendment, made applicable to the states by the Four-

teenth Amendment, make mandatory the exemption of

houses of worship from tax. Residing with state and local

authorities is the taxing power—i. e., the power to exempt

from tax or to tax. This power may not be removed or cur-

tailed by Federal authority without a clear constitutional

mandate. The courts offer avenues of protection for tax-

payers against unjust, capricious or confiscatory abuse of

the power to tax.

——

Oa RET I BOTT AIRE ID: 1

Ls

LLL LLL ALO LLL OO

4

ARGUMENT

THE POWER TO TAX OR TO EXEMPT FROM TAXATION THE

REAL PROPERTY OF CHURCHES, USED EXCLUSIVELY FOR rg.

LIGIOUS PURPOSES, IS DISCRETIONARY WITH THE STATES

AND IS NOT INHIBITED BY THE FIRST OR FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

Relying on the religious clauses of the First Amendment

to the United States Constitution, adopted in 1791, the ap

pellant seeks protection from an alleged coerced support of

churches through a subsidy in the form of a tax exemption

on their real property used exclusively for religious purposes,

The claim is that the “establishment” clause, which prohibits

any aid to religion from the United States or the individual

states, prohibits aid in the form of tax exemption. Such ex-

emption in New York State rests on the provisions contained

ir, Article XVI, Sec. 1, of the New York Constitution and

Sec. 420, Subdiv. 1, of the New York Real Property Tax

Law.

Article XVI, Section 1, of the Constitution of the State

of New York-—in as far as is here pertinent—provides:

“Exemptions from taxation may be granted only

by general laws. Exemptions may be altered or re-

pealed except those exempting real or personal prop-

erty used exclusively for religious, educational or

charitable purposes as defined by law and owned by

any corporation or association organized or con-

ducted exclusively for one or more of such pur-

poses and not operating for profit.’’ (emphasis

added)

Section 420, Subdiv. 1, of the New York Real Property

Tax Law provides:

“‘Real property owned by a corporation or associ-

ation organized exclusively for ... religious . . . pur-

poses ...and used exclusively for carrying out there-

upon one or more of such purposes... shall be ex-

empt from taxation as provided in this section.”

cattle ata

7

_

5

It must be clear that, save for any prohibition in the

United States Constitution which by its terms covers, or by

judicial interpretation has been extended to cover, the indi-

yidual state, New York State has the clear power to tax or

exempt from taxation the real property of churches used

exclusively for religious purposes. It is claimed, however,

that the “establishment” clause of the First Amendment,

which has long since been interpreted to apply its strictures

to both the Federal Government and the state governments,

(Cantwell v. Connecticut, 310 U.S. 296, 303) forbids any

aid on the part of the United States or any state to any

church.

It is settled constitutional principle that the state is free

to select its objects of taxation, and pursuant to this power,

may altogether decline to tax certain kinds of property, so

jong as there is a reasonable basis for the exemption. Car-

michael v. Southern Coal and Coke Co.. 301 U.S. 495 (1936);

Williams v. Baltimore, 289 U.S. 36 (1933). Exemptions

which the legislature, in its wisdom, grants to individuals or

organizations, in order to encourage OF foster the public

good, long have been recognized as proper, and all that is

required to sustain them is a showing of some fairly dis-

cernible relationship between the good of the person receiv-

ing the exemption and the good of the community. (Wil-

liams v. Baltimore, (p. 41)).

The State of New York has chosen in its fundamental

law to exempt the real property of churches used exclu-

sively for religious purposes. Is there anything in the “‘estab-

lishment” clause of the Federal Constitution which can be

read to forbid this exemption? No. The highest court of

the State of New York, in this very case, has upheld the

validity of the statute granting tax exemption to real prop-

erty owned by churches and used exclusively for religious

purposes. The same result has been reached in numerous

other state cases: See La Fevre v. Mayor of Detroit, 2 Mich.

586, 592 (1953); Trinity Church v. City of Boston, 118

Mass. 164, 165 (1875); Trustees of Griswold College v.

State, 46 lowa 275, 282 (1877); Trustees of the First

ea EE ATI aS AE

6

Methodist Episcopal Church, South v. The City of Atlanta,

76 Ga. 181, 192, 196-197 (1886); Snyder v. Town of New.

ton, Conn., 161 A.2d 770, 776 (Conn., 1960), appeal dis.

missed, 365 U.S. 299 (1961); General Finance Corp. y. Ap.

chetto, 176 A.2d 73, 76-79 (R.I., 1961), appeal dismissed,

369 U.S. 423 (1961); State ex rel Reynolds y. Nusbaum,

115 N.W. 2d 761, 766 (Wisc., 1962). See also the follow-

ing cases, which, without any particular discussion of the

constitutional question, describe the salutary role such ex-

emptions play in our society: Nichols v. School Directors,

93 Ill. 61, 64 (1879); Y.M.C.A. of Omaha v. Douglas County,

83 N.W. 924, 926 (Neb., 1900); Commonwealth v. Y.M.C.A,

76 S.W. 522, 523 (Ky., 1903); Church of the Holy Faith y

State Tax Commission, 48 P.2d 777, 784 (N.M., 1935).

There seems to be no question but that the highest courts

of New York and of other states uniformly have upheld the

constitutionality of tax exemption accorded to houses of

worship, parsonages and other religious real property, when-

ever such an exemption has been attacked under state con-

stitutional provisions requiring uniformity of taxation and

forbidding the maintenance of churches by the state. No

valid ground has been advanced by Appellant for a depar-

ture now from this settled authority.

The constitutionality under the Federal Constitution of

exemptions accorded to churches has also been upheld by

every state court or lower Federal court that has considered

the question. The state cases are: City and County of San

Francisco v. McGovern, 152 P. 980, 989 (Cal. App., 1915);

Garrett Biblical Institute v. Elmhurst State Bank, 163 N.E.

1, 45 (Ill., 1928); State v. Alabama Educational Foundation,

163 So. 527, 530 (Ala., 1935); Lundberg v. County of Ala-

meda, 298 P.2d 1 (Cal., 1956), dismissed, 352 U.S. 921

(1956); Fellowship of Humanity v. County of Alameda, 315

P.2d 394, 406-409 (Cal. App., 1957); General Finance Corp.

v. Archetto, 176 A.2d 73, 76-79 (R.I., 1961), dismissed, 369

U.S. 423 (1961); Sisters of Holy Cross v. Town of Brookline,

198 N.E. 2d 624 (Mass., 1964).

_

7

The lower Federal court cases are: County of Santa Clara

», Southern Pacific RR. Co., 18 F. 385, 400 (9th Cir., per

associate Justice Field, 1882), affirmed, 118 U.S. 394

(1886); Sovereign Camp W.O.W. v. Casados, 21 F.Supp. 989

(D.C. N.M., 1938), affirmed, 305 U.S. 558 (1938); United

States Vv. Department of Revenue of State of Ill, 202

F.Supp. 757 (D.C. N.D., Ill., 1961), affirmed, 371 U.S. 21

(1962); Swallow v. United States, 325 F.2d 97 (10th Cir.,

1963), cert. denied, 371 U.S. 950 (1963), rehearing denied,

372 U.S. 925 (1963).

The legal reasoning upon which the courts have unani-

mously found constitutional approval for religious tax €X-

emptions is that such exemptions, because they do not in-

yolve the state in actively promoting or advocating religion

or religious worship, are not within the category of govern-

mental establishment of religion. Justice Reed in his dissent-

ing opinion in McCollum v. Board of Education, 333 U.S.

203, (1948) lists tax exemption as one of the ‘incidental

advantages that religious bodies, with other groups similarly

situated, obtain as a by-product of organized society.” He

points out: “This explains the well-known fact that all

churches receive ‘aid’ from government in the form of free-

dom from taxation.” (p. 249)

Tax exemption is often regarded by the courts as one of

the permissible “accommodations” to religion and it has al-

ways been recognized that the government may, in pursuit

of its policy of neutrality, grant exemption to religious in-

stitutions in the same manner that it does to other chari-

table organizations.

There appears to be no Supreme Court opinion, directly

on point, but a review of the cases where the subject of

tax exemption for churches has been mentioned, and the

cases which it has affirmed without opinion, leaves no room

for doubt that the Supreme Court always has and still does

consider religious tax exemptions to be constitutional.

An early Supreme Court case considering a tax exemp-

tion accorded religious institutions was Gibbons v. District

of Columbia, 116 U.S. 404 (1886). There the question pre-

8

sented was whether grounds adjacent to St. Patrick’s Church

in the District of Columbia were exempt under a District of

Columbia law exempting church buildings and grounds act.

ally occupied by such buildings. The lower court denied the

exemption on the grounds that the land neither was used

for a church building nor reasonably needed for the enjoy-

ment of the building as a church. The Supreme Court up-

held the lower court’s decision without questioning the

soundness of the grant of tax exemption to the church on

its exclusively religious properties. Likening the District of

Columbia to a state, the court concludes its opinion by stat-

ing: “In the exercise of this power [the power to tax], Con-

gress like any state legislature unrestricted by constitu-

tional provisions, may, at its discretion, wholly exempt cer-

tain classes of property from taxation, or may tax them at

a lower rate than other property.” Since an exemption from

taxation on real property used exclusively for religious pur-

poses was involved, it is clear that this court had no reserva-

tions but that such an exemption was constitutional.

Further this Court has continually accepted as completely

valid all nondiscriminatory exemptions from taxation granted

to religious institutions under state and Federal tax statutes,

That this Court may still hold to this view is shown by the

fact that it recently dismissed, for want of a substantial Fed-

eral question, the only appeals to it from state court deci-

sions upholding state religious tax exemptions, Lundberg v.

County of Alameda, 298 P.2d 1 (Cal., 1956), dismissed, 352

U.S. 921 (1956); General Finance Corp. v. Archetto, 176

A.2d 73 (R.I. 1961), dismissed, 369 U.S. 123 (1961), and

denied certiorari in the only case directly challenging the

Federal income tax exemption to religious institutions,

Swallow v. United States, 325 F.2d 97 (10th Cir., 1963),

cert. denied, 371 U.S. 950 (1963), rehearing denied, 372 U.S.

925 (1963). Further evidence of this Court’s present attitude

may be found in Abington School District v. Schempp, 374

U.S. 203 (1963), the case in which the court declared un-

constitutional the prescribed reading of the Bible at open-

ing exercises in the public schools. Justice Brennan’s con

_

9

curring opinion specifically recognized the validity of tax

exemptions to religious groups, and though the majority of

the court did not join this opinion, undoubtedly because

the precise question was not before them, a reading of the

majority opinion and the concurring opinion of Justices

Goldberg and Harlan leaves little doubt that the court

agreed that separation of church and state does not require

the abolishing of such tax exemptions.

This Court denied certiorari in a case involving the ques-

tion of the constitutional basis of tax exemption under the

Federal and Maryland Constitutions in Murray v. Comptrol-

ler of the Treasury, 241 Md. 383, 216 A.2d 897 (1966),

cert. den., 385 U.S. 816 (1966). There the Court of Ap-

peals of Maryland held that tax exemption for church prop-

erties under the state and Federal constitutions was proper.

The Court extended the principle to the properties used for

the secular activities as well as religious activities. Justice

Reed in his dissenting opinion in Murdock v, Pennsylvania,

319 U.S. 105 (1943), indicated that it was his opinion not

only that tax exemption for religious activities was not pro-

hibited by the Federal Constitution but that:

“Religious societies depend for their exemptions

from taxation upon state constitutions or general

statutes, not upon the Federal Constitution, Gibbons

vy, District of Columbia, 116 U.S. 404, 6 S.Ct. 427,

29 L.Ed. 680. (p. 128) . . . Whatever exemptions ex- —

ist from taxation arise from the prevailing law of

the various states. (p. 129) . . . It has never been

thought before that freedom from taxation was a

perquisite attaching to the privileges of the First

Amendment. The national Government grants ex-

emptions to ministers and churches because it

wishes to do so, not because the constitution com-

pels.” (p. 130)

If one reads the religious clauses of the First Amendment

which are cited to establish the principle of separation of

church and state, it must be seen that the words:

10

“Congress shall make no law respecting an estab.

lishment of religion, or prohibiting the free exercise

thereof... .”

do not mention churches.

The real property owned by “churches” was probably

minimal within the boundaries of the thirteen states at the

time of the adoption of the First Amendment. From this,

it can be concluded that the religious clauses of the First

Amendment do not cover the problem of the taxation of

real property owned by churches and used exclusively for

religious purposes. These can then be imposed or exempted

under the powers found in the state constitutions—including

New York State. Or, as Mr. Justice Brennan observed in his

concurring opinion in Abington School District v. Schempp,

374 U.S. 203 (1963):

“Nothing we hold today questions the propriety

of certain tax deductions or exeinptions which inci-

dentally benefit churches and religious institutions,

along with many secular charities and nonprofit or-

ganizations. If religious institutions benefit, it is in

spite of rather than because of their religious char-

acter... .” (p. 301-02)

In general, it is clear that the Federal Constitution pro-

vides that “Congress shall have the power to lay and collect

taxes ...”’ (Art. I, Sec. 8, cl. 1—U.S. Constitution) This

Court has held that “In the exercise of its constitutional

power to lay taxes, Congress may select the subjects of

taxation, choosing some and omitting others.” (Sonzinsky

v. United States, 300 U.S. 506 (1937)). If this is true of

the United States, it is true of the States, which have a

broader base of power than does the United States. Fur-

ther, this Court in Carmichael v. Southern Coal & Coke

Co., 301 U.S. 495 (1937) pointed out:

“It is inherent in the exercise of the power to tax

that a state be free to select the subjects of taxation

and to grant exemptions. Neither due process nor

equal protection imposes upon a state any rigid rule

—

1}

of equality of taxation.... This Court has repeat-

edly held that inequalities which result from a sin-

gling out of one particular class for taxation or ex-

emption infringe no constitutional limitation.” (p.

509)

“A state legislature, in the enactment of laws, has

the widest possible latitude within the limits of the

Constitution.” (p. 510)

It is clear from these generalizations that Congress or the

state legislatures, here New York State, have broad powers

to tax and equally broad powers to exempt from taxation—

there being no clear constitutional inhibition involved. It is

important to note that the First Amendment does not read:

“Congress shall make no law respecting an establishment of

achurch,...” The word “church” is not used once in the

entire Constitution or any of its amendments. In addition,

no meition is made of taxation or exemption from taxation

in the First Amendment. From this fact it could be argued

that the founding fathers in drafting the “free exercise”

clause were more interested in protecting “religion” than

protecting or fostering any of the existing churches. This

interpretation finds support in Murdock vy, Pennsylvania,

319 U.S. 105 (1943) which is widely cited as authority for

the proposition that government can tax the preacher and

the church, but not the right to religious exercise—to tax

“churches” in the sense of real property, but not “religion”

in the sense of its function.

There are those who will argue that the power to tax the

church sanctuary may be exercised to destroy ‘““churches”

and hamper religion as the pendulum of permissiveness

gains momentum. They fear the legislatures will drive reli-

gion and the churches underground. The Christian religion

gained its first strength literally, “underground.” Perhaps it

needs to return to its catacombs to renew its witness. Be

that as it may, Justice Frankfurter supplied one answer:

“The power to tax like all powers of government,

legislative, executive and judicial alike can be abused

12

or perverted. The power to tax is the power to de.

stroy only in the sense that those who have the

power can misuse it.”

Mr. Justice Holmes disposed of this smooth phrase as a cop.

stitutional basis for invalidating taxes when he wrote:

“The power to tax is not the power to destroy

while this Court sits.” (Panhandle Oil Co. v. State

of Mississippi ex rel. Knox, 277 U.S. 218, 223, 48

S.Ct. 451, 453, 72 L.Ed, 857, 56 A.L.R. $83.” (p.

137))

There appears to be no useful purpose here to note the

many supplementary authorities available for a study in

depth of the social, religious and political aspects of the

problem of the taxation of churches. A book, Should

Churches Be Taxed? by D. B. Robertson, published in

1968, gives a comprehensive review of the whole field.

Even later we find published a serious study of “the amount

of tax-exempt property in this country, what proportions

of it are public and private, and, of the latter, what ratios

are secular and ecclesiastical, and, finally, how the latter is

apportioned among the principal religious divisions.” (p. ix-

The Churches: Their Riches, Revenues, and Immunities by

Martin A. Larson and C. Stanley Lowell). And finally, for

general background, there is nothing more enlightening than

Dr. Leo Pfeffer’s Church, State, and Freedom (1967).

Returning to the “law” of the case, we respectfully bring

to the court’s attention the language which it used in Bell’s

Gap Railroad Co. v. Pennsylvania, 134 U.S. 232 (1890),

where this Court stated without any equivocation:

“The provision in the Fourteenth Amendment,

that no State shall deny to any person within its

jurisdiction the equal protection of the laws, was

not intended to prevent a State from adjusting its

system of taxation in all proper and reasonable ways.

It may, if it chooses, exempt certain classes of prop-

erty from any taxation at all, such as churches ***

All such regulations, and those of like character, so

~~

13

long as they proceed within reasonable limits and

general usage, are within the discretion of state leg-

islatures, or the people of the State in framing their

Constitution.” (p. 237) (emphasis added).

CONCLUSION

For the reason stated above, the judgment of the Court

of Appeals for the State of New York should be affirmed.

Respectfully submitted,

Protestants and Other Americans

United for Separation of Church

and State, amicus curiae

Franklin C. Salisbury

Attorney for Amicus

1518 K Street, N. W.

Washington, D. C. 20005

Tel. No. (202) 783-3617

et