Watch for Updates
Originally Posted February 19, 2024
by Robert Baty
Some will conclude it was bound to happen.
It has happened.
For many years now Forbes contributor Peter J. Reilly has reported on developments regarding the income tax free ministerial housing allowance as provided by Internal Revenue Code Section 107; most recently how 2 federal district court rulings that the law was UNconstitutional were reversed on appeal, stopping the litigation.
One of the issues in that litigation, that the courts never ruled on as to the merits, was the claim that IRC 107 resulted in the unconstitutional entanglement of the government in such cases as demonstrated by the issuance of the administrative Revenue Ruling 70-549 in response to political influence by Omar Burleson and George H.W. Bush during the Nixon years on behalf of Abilene Christian University.
At least twice over the course of 20 years, the IRS, based on undisputed facts, law and theology, ruled that Abilene Christian University and similar schools operated by the members of the churches of Christ were not “integral agencies of the church”, and the schools admitted that such was the case. However, interest persisted in getting the tax-free ministerial housing allowance for the schools’ employees and “integral agency” status was the key to winning that victory.
Ultimately, Bush and Burleson put the political squeeze on the IRS and in 1970 Revenue Ruling 70-549 was issued recognizing Abilene Christian University and similar schools (Pepperdine University possibly being the most well known) as integral agencies of the church despite the law, the facts, and the theology of the people who founded and run the schools.
Since 1970, Abilene, Pepperdine, and many other private businesses/schools founded and operated by members of the churches of Christ have been exploiting Revenue Ruling 70-549.
That should not be the case.
They are not legally, factually, or theologically “integral agencies” of the churches of Christ.
Florida College and its people have since its founding 70 years or so ago prided themselves in not being like Pepperdine, Abilene, etc. and the people who founded and operate them.
Then in 2016 there was Roy Byers who had an employment beef with Florida College and filed a civil suit for damages.
Byers v. Florida College
16-CA-001986
Hillsborough County, FL
Consistent with the historic position, the law, and the theology, the case rocked along for about 5 years; just a former employee with a complaint against a business corporation that happened to be tax-exempt as an educational institution, not a minister against a church or church agency.
Mr. Byers, the plaintiff, was being worn out and bankrupted by the school’s antics.
For reasons unknown, in the summer of 2021, Florida College found its ace and played it; the last straw for Mr. Byers. He was forced to file for a voluntary dismissal and it was all over.
Well, over except for the history making move by Florida College.
What was it?
Florida College announced it was joining the Pepperdine integral agency club started by Abilene Christian University in 1970.
Florida College filed a motion to amend its ANSWER in the case; to raise affirmative defenses not previously raised. Given the current state of issues in other cases unrelated to the churches of Christ or schools founded and/or operated by its members, Florida College might have been expected to prevail on the issue.
Florida College’s new, affirmative defenses were that Florida College was a religious institution and Mr. Byers was formerly one of its ministers. As a result, the 1st Amendment to the U.S. Constitution prohibited the government (court) from meddling in their affairs.
Members of the churches of Christ will quickly recognize the historic significance of the position taken by Florida College. Others maybe not so much.
Florida College joins the Pepperdine Club and rightly takes its place in the evolution of tax and employment law regarding these important public issues.
It ought not be this way, but it is, and I have taken note of it.
Roy Byers Tenure Ceremony
__________________________________________________
References to Byers case noted above:
Full docket record:
http://kehvrlb.com/wp-content/uploads/2024/02/Byers-v-FC-CaseNumber_16-CA-001986.pdf
Amended COMPLAINT:
http://kehvrlb.com/wp-content/uploads/2024/02/Byers-v-FC-Amended-Complaint.pdf
ANSWER to Amended COMPLAINT (July 2016):
http://kehvrlb.com/wp-content/uploads/2024/02/Byers-v-FC-FC-ANSWER-to-Amended-Complaint.pdf
Motion to Amend ANSWER (July 2021):
Update March 6, 2024
https://floridacollege.edu/news/qa-with-president-john-weaver/
Update March 8, 2024
Steve Wolfgang (see above referenced article) is a graduate of Florida College, as is his wife. Steve is a bonafide scholar and historian, now somewhat, or mostly, retired. I asked him, on his FaceBook page at the following link, about the matter. After several posts from me, he finally responded today and I responded to his response, as shown below.
Update March 9, 2024
I proposed an edit to The Florida College Wikipedia entry to reflect the foregoing. After fussing with editors as shown below, no version of the edit was approved.
https://en.wikipedia.org/wiki/Florida_College#History
Wikipedia editors are a fickle bunch, and I am without any particular expertise in trying to get anything posted on Wikipedia. The above screenshot is my second effort after editorial criticism. It was also criticized for having those links to Court documents, resulting in another effort as shown below.
Wiki editors are still not satisfied with either my narrative or my citations or my links. So, I gave it another try as shown below.
An editor suggest I use the “talk” page feature to try and figure out what they might find acceptable. So, I gave it a try.
https://en.wikipedia.org/wiki/Talk:Florida_College
So, I tried a little different approach. Maybe it will be accepted. Maybe not.
Then there was this exchange with the latest editor to make his appearance; indicating Wikipedia should have no more objections to my latest edit being accepted and allowed to publicly post to the Florida College article. We will see.
Update March 10, 2024 – 9:30 AM MT
No further contacts/responses from Wikipedia editors. No public update to Florida College Wikipedia page at:
https://en.wikipedia.org/wiki/Florida_College
The following exchange today with a Wikipedia editor should bring the present effort to update the Florida College Wikipedia article to an end.
Those Wikipedia editors can certainly be sneaky at times. Despite refusing my edit attempts, they were stung by some of my criticisms and did make at least one change I just happened to notice. They didn’t tell me, nor does their edit notes indicate what they did in any meaningful way.
So, I decided to give Reddit a try:
https://www.reddit.com/r/FloridaCollegeCase/comments/1bbhb34/florida_college_temple_terrace_fl_the/
How does Florida College measure up to Catholic institutions, publicly and privately (as in the Byers case). Here is a link to a Christian Post story about a case out of Tampa involving a Catholic suing a Catholic institution or two:
Unlike the Florida College case, that case was decided by a judge, and the case was dismissed based on the ecclesiastical abstention doctrine, as reported at the following link:
https://trellis.law/doc/185813269/order-dismissal
The on-line docket record shows the case is still “open”. I was able to get in touch with Mr. Scarpo. He was not aware of the “open” status of the case and will be taking action to resolve that. Mr. Scarpo also told me that the dismissal order left 2 issues unresolved. Rather than litigate those remaining issues, the parties reached a settlement disposing of the case; noting that the school, by that time, had “returned to its roots” and the issues of concern to Mr. Scarpo were no longer the problem which necessitated the lawsuit.
Update March 11, 2024
Deborah Childress of the Tampa Free Press also covered the Scarpo story in 2021. Following is the link to her story in the Tampa Free Press:
At the following link is a recent article from Pepperdine Caruso Law School that gives a deeper dive into the underlying principles regarding the ecclesiastical abstention doctrine and, if I understand it, argues it has been overly and abusively used.
http://kehvrlb.com/wp-content/uploads/2024/03/Pepperdine-Article-on-Contracts-and-Religion.pdf
https://law.pepperdine.edu/faculty-research/michael-helfand/
Link to Kant v. Lexington Theological Seminary case mentioned above:
https://casetext.com/case/kant-v-lexington-theological-seminary-1
Link to Kirby v. Lexington Theological Seminary case mentioned above:
https://casetext.com/case/kirby-v-lexington-theological-seminary-1
Update March 12, 2024
Here is another legal discussion of some of the issues involved in Florida College’s invoking of the ecclesiastical abstention doctrine.
https://reason.com/volokh/2022/04/29/the-jurisdiction-problem-in-the-church-autonomy-cases/
The author also has this related article.
http://kehvrlb.com/wp-content/uploads/2024/03/Weinberger-on-The-Limits-of-Church-Autonomy.pdf
Following is a document from a 2020 suit filed by Florida College against one of its students. Consistent with its true character and history, Florida College did not claim to be a “religious institution”. These are the same claims originally made by Florida College in the Byers v. Florida College case.
Following is an image of the contract Roy Byers signed after he was re-hired by Florida College. The tenure agreement provides for an appeal process where the contract is not renewed the following year. Florida College refused to renew the contract or allow for the appeal process to take place (perhaps fearing another loss as before). The breach of contract claim involves this contract and Florida College’s failure to respect it.
Update March 13, 2024
Another case to consider/watch: O’Keefe v. Oklahoma Christian University (OC). O’Keefe was a tenured professor at OC and was fired without “due process”, allegedly. So, he sued in December of 2022. The case has rocked along and is pending a resolution of what cases might be resolved through mediation/arbitration and which by the Court. OC has yet to raise the “ecclesiastical abstention doctrine”.
Link to one of many media reports on the case:
Link to O’Keefe petition illustrated below:
http://kehvrlb.com/wp-content/uploads/2024/03/OKeefe-v-OC-Petition.pdf
Link to on-line docket/document records:
https://www.oscn.net/dockets/search.aspx
Update March 14, 2024
Link to FaceBook post by Lori Osley, Micheal O’Keefe’s wife, announcing their decision to file suit against Oklahoma Christian University in January of 2023.
Link to Michael O’Keefe FaceBook page.
https://www.facebook.com/mjokeefe1
Link to one of Michael O’Keefe’s FaceBook posts about his case against Oklahoma Christian.
In browsing around and asking around about the O’Keefe case, I just ran across the latest appeals court action and found that Oklahoma Christian University has, in fact, raised the “ecclesiastical abstention doctrine” which it refers to as the “church autonomy doctrine”. It is asking the appeals court to raise the stay and allow it to return to district court and file a motion to dismiss the case altogether on that basis.
Link to Oklahoma Christian University’s latest filing with the appeals court:
http://kehvrlb.com/wp-content/uploads/2024/03/Latest-filing-on-appeal-by-OC-in-OKeefe-v-OC.pdf
Link to Michael O’Keefe’s latest filing with the appeals court:
http://kehvrlb.com/wp-content/uploads/2024/03/Latest-filing-on-appeal-in-OKeefe-v-OC.pdf
Update March 16, 2024
Kevin Jacobs is one of Michael O’Keefe’s lawyers and appears to be representing him at the district court level while someone else handles the appellate work. Kevin was president of Oklahoma Christian University for about 5 years (1996-2001). He was married to the daughter (Morrow Beth Baird) of one of the university’s founders, James O. Baird. They split shortly after Kevin unexpectedly resigned at age 41. Kevin and Juliet married in 2015.
Here is a link to the Oklahoma City newspaper, The Oklahoman, YouTube channel broadcast featuring Michael O’Keefe (April 1, 2022).
https://www.youtube.com/watch?v=FM8alIeTztI
Here’s another link to an Oklahoma City News 9 TV YouTube broadcast in January of 2023, featuring O’Keefe’s lawyer Kevin Jacobs.
https://www.youtube.com/watch?v=9fINbCyUKxc
The Wisconsin Supreme Court has just published an opinion denying a religious exemption from unemployment tax to Catholic related organizations. I think its discussion is quite relevant to the Byers v. FC and O’Keefe v. OC cases.
Links to the Wisconsin Supreme Court Opinion:
https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=777152
Hemant Mehta has published this article about that case, though he does not mention or deal with any relevance to the Byers and O’Keefe cases:
https://www.friendlyatheist.com/p/wi-supreme-court-catholic-aligned
That Wisconsin Supreme Court case decided yesterday has a lot to say on the subject applicable to Byers and O’Keefe. One point in particular that caught my attention is shown below, from 1978:
https://www.casemine.com/judgement/us/59149421add7b049345b6f69
Update March 17, 2024
Peter J. Reilly published a guest article, from me, on his blog at:
https://yourtaxmatterspartner.com/a-tale-of-two-tenured-professors/
Update March 18, 2024
The Mormons (Church of Latter-Day Saints) is certainly having its problems with members and former members over the use of contributions. There are now lots of cases in the works, with billionaire James Huntsman, perhaps, leading the charge. His case has been in the works for awhile and a 9th Federal Circuit Court of Appeals has just scheduled a rehearing for September 2024. Following is a link to one of the documents filed by the church requesting the rehearing.
Update March 28, 2024
Here is a link to a case out of Florida and reported in October 2023, regarding a bonafide minister and disputes with a church. Mostly the minister lost on the basis of the ecclesiastical abstention doctrine, but one issue appears to have survived (regarding control of a piece of real property that was a parsonage). I don’t have the latest information on the case.
Update March 30, 2024
Here’s an article on a Baptist case that may be having oral arguments before a federal appeals court on April 4, 2024.
https://baptistnews.com/article/oral-arguments-in-mcraneys-appeal-set-for-april-4/
Latest docket history in McRaney case referenced above:
Link to Will McRaney’s latest FaceBook video report on his case:
https://www.facebook.com/will.mcraney/videos/2176091916068227
Link to another news article about a World Vision case where it lost because the woman involved was not considered a “minister”:
Update on World Vision case:
https://casetext.com/case/mcmahon-v-world-vision-inc-7
(Trial in that case, McMahon v. World Vision, is currently set for June 4, 2024.)
Update March 31, 2024
Will McRaney, referenced above, in his latest FaceBook video discussing his case, also notes that former head of Southwest Baptist Theological Seminary Adam Greenway, just files suit against the seminary and one of its executives for defamation. This will be another test of the “ecclesiastical abstention doctrine” as it applies to Baptists. Link to COMPLAINT filed March 20, 2024 is:
http://kehvrlb.com/wp-content/uploads/2024/03/Greenway-v-SWBTS-032024.pdf
Link to Baptist Standard article on Greenway’s suit:
https://www.baptiststandard.com/news/baptists/greenway-files-lawsuit-against-southwestern-seminary/
Update April 1, 2024
South Carolina Law Review on “Ecclesiastical Abstention Doctrine”!
OR
Update April 2, 2024
The latest media on the McRaney case:
https://baptistreport.substack.com/p/a-battle-for-baptist-autonomy-the
Update April 3, 2024
Link to 20-page amici brief filed by 61 Baptists in support of Will McRaney:
http://kehvrlb.com/wp-content/uploads/2024/04/61-AMICI-for-Will-McRaney.pdf
Update April 4, 2024
A news report following today’s oral arguments in McRaney v. NAMB can be found at:
Update April 5, 2024
A couple of tweets regarding yesterday’s oral arguments in the McRaney v. NAMB case:
There is also this video discussion of the McRaney v. NAMB case:
https://www.youtube.com/watch?v=BXyx21hEQHQ
Link to archived recording of oral arguments in McRaney v. NAMB:
https://www.ca5.uscourts.gov/OralArgRecordings/23/23-60494_4-4-2024.mp3
Update April 7, 2024
Peter J. Reilly, Forbes contributor, has posted an update on the O’Keefe and Byers cases on his blog at:
https://yourtaxmatterspartner.com/okeefe-v-ocu-byers-v-fc-update/
Update April 15, 2024
The recently fired president of Calvin University has just filed suit against the university. It may be just a matter of time until the university invokes the “ecclesiastical abstention doctrine” in order to get the case dismissed.
Link to Bob Smietana Religion News article:
Link to federal COMPLAINT:
https://www.scribd.com/document/722500206/ECF-1-Complaint
Update April 23, 2024
On April 22, 2024, Lael Weinberger filed an amicus brief in a discrimination case against Moody Bible Institute. It might provide some additional insight into the “ecclesiastical abstention doctrine”.
http://kehvrlb.com/wp-content/uploads/2024/04/2024-04-22_Lael-Weinberger-Amicus-Brief.pdf
Here is a link to the Moody case decision of March 18, 2024 to which Weinberger, above, is responding:
https://caselaw.findlaw.com/court/us-7th-circuit/115947920.html
.
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