The following was posted on the newsgroup alt.religion.scientology, but I’ll post here as well.
The Ninth Circuit finally, after 10 months, published its opinion in Sklar v. Commissioner, and I’m sad to say it disappoints. I wrote about the oral arguments in this case back in May, trying to read the tea leaves as to what the court might do.
Although the court arrives, ultimately, at the right decision (the IRS’s unconstitutionally preferential treatment of Scientology should not be extended to other religions), this opinion is a huge disappointment because it appeared that at oral argument in February of this year, the court was inclined to remand the case back to Tax Court to permit the Sklar’s to make a disparate treatment argument, an argument which would have necessitated allowing into evidence the IRS-Scientology “secret agreement,” which, though published by the Wall Street Journal, neither the IRS nor Scientology will authenticate/validate/admit exists. Despite that this very issue was the primary focus of discussion at oral argument in February, the opinion makes no mention of it. Here’s a snippet from the oral argument:
Judge Wardlaw: “The view of the IRS is it can unconstitutionally violate the Constitution by establishing religion, by treating one religion more favorably than other religions in terms of what is allowed as deductions, and there can never be any judicial review of that?”
IRS (Delsole): “That is not at all what I said.”
Judges Pregerson & Wardlaw (simultaneously): “That’s the bottom line!”
Judge Wardlaw: “This does intrude into the Establishment Clause.”
Judge Wardlaw even said, at one point during oral argument, that what the Court would probably have to do is remand because there was no other way of actually knowing whether Sklar’s disparate treatment argument would work except to allow him to at least make it, despite its near-certain futility. It was Judge Wardlaw who then wrote the opinion that barely mentioned this issue.
Keep in mind that Scientology was not a party to this case so it was never within the Tax Court’s nor the Ninth Circuit’s discretion to rule on the constitutionality of the IRS-Scientology agreement–that wasn’t the central issue in this case, so it’s no real surprise that this case came out identical to the first one. But the judges seemed poised to remand, which would’ve put the IRS-Scientology agreement at trial, in a sense, and good things may have come of that.
Also strange is that this opinion took 10 months to write. Yet the opinion obstinately declines to grapple with what the court expressly admitted at oral argument was a difficult question–it just ducks it. I’m not going to speculate too particularly, but there is no good reason for such a simple, by-the-numbers opinion to take so long (Federal Circuit Court opinions generally take 4 months from oral argument to be published). My guess is that while the Judges never disagreed as to whether the Sklars should ultimately prevail, there was disagreement over whether to remand, with the pragmatic camp suggesting that it would be a futile exercise (likely correct) and the rule of law side arguing the Ninth Circuit should not be deciding the merits of the Sklars’ argument before they’ve made it (which is what I was rooting for).
This would’ve been a nice opportunity to see the IRS-Scientology agreement argued as to its constitutionality but that opportunity and moment are now lost, at least for now. Few, if any, plaintiffs have standing (as taxpayers) to challenge the agreement, and taxpayer standing became more difficult last year after Hein v. Freedom From Religion Foundation was decided by the Supreme Court.