Gaylor V. Mnuchin – 7th Circuit Oral Arguments

Gaylor v. Mnuchin – Oral Arguments

The 7th Circuit Court of Appeals sits at Chicago, occupying the 27th Floor of the Everett Dirksen Federal Building in the Federal Plaza downtown. On October 24th, I attended the oral arguments presented before the Court regarding Case # 18-1277, Gaylor v. Mnuchin, about which I wrote a bit last week. It is a reprise of a case brought by the Freedom From Religion Foundation which was dismissed in 2013 for lack of “standing” by the plaintiffs. After making some adjustments in their case, FFRF is back again.
Judge Michael Brennan presiding, joined by Senior Judge Daniel Manion, and Senior Judge William J. Bauer (nominated by Presidents Trump, Reagan, and Ford, respectively, and confirmed by the Senate).

I’m not an attorney, I don’t play one on TV, and I didn’t stay at a Holiday Inn last night – so take these “laymen’s” impressions with grains of salt.

FFRF has called this a David vs. Goliath campaign, imagining Goliath as the various religious bodies whose ministers would be effected by the elimination of tax-exempt housing allowances. But the real giant in the room, and the bigger challenge for them, may be that they are suing the US government itself – specifically the Secretary of the Treasury.
Representing the government today was an array of attorneys, led by Jesse Panuccio, Associate Attorney General of the US (the third highest ranking official at the Department of Justice, who oversees virtually all non-criminal matters). He was joined by 4 other attorneys at a table laden with documents and surrounded by document cases and still more attorneys seated near the table.

The chambers were “comfortably full” – each of the rows of spectator benches might have had room for one or two more persons if everyone move to the center.
Also arguing an amicus brief was Luke Goodrich, VP and Senior Counsel of Becket Law – a firm which argues religious liberty cases on behalf of believers in many religious communities, “Christian” and otherwise. They are representing a coalition of Chicago churches (ranging from Holy Cross Anglican Church to the Chicago Embassy Church, to the Chicago Diocese, Russian Orthodox Church), arguing specifically that the elimination of the IRC 107(2) would discriminate against poorer religious groups which cannot afford to provide a parsonage as allowed in Section 107(1).

Seated at the opposite table were two attorneys who argued that the ministerial housing allowance permitted under Internal Revenue Code Section 107(2) is unconstitutional. Speaking first was Adam Chodorow, Associate Dean for Academic Affairs for the Sandra Day O’Connor College of Law at Arizona State University brief filed by a coalition of tax professors. I thought he made the strongest and clearest case possible that IRC 107(2) is should be declared unconstitutional simply by singling out a special class (ministers) to receive a benefit not available to other citizens. Agree with the arguments or not, he made his case clearly and fielded effectively the questions asked him by the Justices.

Richard Bolton, who I believe is a general-practice attorney in Madison, WI where FFRF is located, spoke last, representing Annie Gaylor and Dan Barker, co-presidents of FFRF. My impression is that FFRF was not particularly well served by his presentation, which to my ears sounded rambling, disjointed, repetitive, and unclear. Agree or not, the other attorneys presented their cases clearly and concisely, supported by relevant court decisions and logic. Bolton, who seemed flustered by questions from the justices, also sounded exasperated at times that the simple assertion of the rightness of his case was not accepted as obvious. One man’s opinion. Presumably, such cases are decided on the merits of conflicting claims presented in the briefs, not so much on the eloquence and personality of the presenters.

Many of the issues raised in oral arguments were discussed in my post last week, reporting on a Loyola Law School seminar regarding this case. Some of them included whether the housing allowance passes the 3-prong “Lemon” test (including whether the law has “secular intent” – Judge Manion posed several questions about the secular effect, not merely the secular intent, of the law); whether “Lemon” provisions should take precedence over historical considerations in the legislative history, adjudicating such issues on a practical basis involves government entanglement in the usage of either parsonage or house exempted under the allowance, and much more. “We’ll see.”

A decision is expected sometime in the next two months. The oral arguments became available this afternoon online at the 7th Circuit’s page: media.ca7.uscourts.gov/sound/external/ds.18-12771280.18-1277_10_24_2018.mp3

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