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Originally Posted December 14, 2021
by Robert Baty
Ninth Federal Court of Appeals Decision
December 13, 2021
Hemant Mehta Blog Coverage
From Page 2 of the Appeals Court Decision
“Title IX’s section prohibiting sex discrimination does ‘not apply to an
educational institution which is controlled by a religious organization if the
application of [that prohibition] would not be consistent with the religious tenets of such organization.’ 20 U.S.C. § 1681(a)(3).
Plaintiffs argue that the exemption does not apply to Fuller because the school is controlled by its own board of trustees rather than by a distinct, external organization.
Although the statute does not define the term ‘religious organization’ or address whether it must be legally separate from the ‘educational institution’ it controls, the ordinary meaning of ‘organization’ is broad enough to encompass an entity that is wholly contained within another entity.”
Revenue Ruling 70-549
Revenue Ruling 70-549 Excerpt
“On the basis of these facts, it is held that the college is, in practice, operated as an integral agency of the church…”
Summary of My Efforts Regarding Revenue Ruling 70-549
I saw Hemant’s blog posting and glanced at the 9th Circuit ruling and “blew my top”!
The foundation of Annie Gaylor’s constitutional attack on Revenue Ruling 70-549 was based on my complaint that the IRS compromised the law, the church, the IRS and the principle of separation of church and state when it administratively decided, in 1970 in response to political pressure brought to bear by Omar Burleson and George H.W. Bush on behalf of Abilene Christian University, that the university was “operated as an integral agency of the church”.
That administrative decision, contrary to fact and law, allowed employees of all stripes, to register as “ministers” and claim income tax free housing. Since that time the gimmick has been exploited more and more by non-church businesses.
Abilene Christian University and other such schools, to this day, still proclaim that they are NOT “integral agencies” of the church and preachers in the church consistently make the same claim. Historically, it has been a big deal amongst the church folks and the church folks and the school folks have known for decades that the correct position, based on the facts and the law, is that such private enterprises do not constitute church operations/agencies.
Yet, for billions in tax revenue and political expediency, the IRS and the schoolmen struck a deal; compromising the law, the church, the IRS (its rulings are not supposed to run contrary to fact and law), and the principle of separation of church and state.
Maybe if I had been more successful in my decades long windmill tilting, the Fuller case might have turned out differently.
The Fuller case, at least, is consistent with the Revenue Ruling 70-549 compromise, quite unfortunately.
I don’t know about the Fuller Theological Seminary or its government or the government of the church or religious institution(s) with which it seems to be “affiliated”. However, it appears the Court has noted that it is not, legally, controlled by a religious organization but will be treated as if it is and so, drawing that conclusion, the exemption from Title IX applies and the plaintiffs in that case lose.
About Fuller Theological Seminary
I disagree with the 9th Circuit opinion in the Fuller case regarding Fuller’s organizational nature, but I recognize that the problem is much deeper than simply disagreeing over a singular decision and its reasoning.
As was the case in the Revenue Ruling 70-549 controversy, the controversy runs very deep and very powerful forces are opposed to my opinions in such cases.
Other Coverage of the Fuller Decision
Although the case against Fuller appeared to be a straightforward win within the confines of standard religious freedom jurisprudence, the debate over the relationship between schools and religious freedom continues to come before federal courts.