In the run-up to Election Day, Ballot Question No. 1, more commonly referred to as the marriage amendment, has been the subject of many headlines and intense debate.
What have not received significant attention, however, are Ballot Questions Nos. 2 and 3, the subject of which are church incorporation and tax exemption, respectively.
Ballot Question No. 2 asks voters whether to delete a provision in the Virginia Constitution which says, “The General Assembly shall not grant a charter of incorporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law.”
Kent Willis, executive director of the American Civil Liberties Union of Virginia, said prohibiting churches from incorporating and thereby receiving benefits for which other nonprofit organizations are eligible is unconstitutional.
“From the ACLU perspective, it’s clear that the state should not have a law that creates disadvantages for churches merely because they’re churches,” he said. “The laws should treat all similarly situated nonprofits the same.”
Virginia, and by extension West Virginia, which used to be a part of Virginia, are the only states that have laws prohibiting religious institutions from incorporating. Businesses and nonprofit organizations, meanwhile, have been able to incorporate for a long time.
According to Leesburg attorney H. Robert Showers in his 2002 online article, “Incorporation of Churches in Virginia: A New Day and Law,” some of the benefits of church incorporation are that it allows churches to more easily buy and sell real estate, and it creates a smoother relationship between churches and banks.
The subject of church incorporation surfaced in Virginia in 2001, when the Rev. Jerry Falwell, a nationally recognized pastor from Lynchburg, challenged the Virginia Constitution, arguing that the church incorporation provision violated the First Amendment of the U.S. Constitution. The U.S. District Court for the Western District of Virginia agreed with him and ruled in April 2002 that the provision violated the constitutional right to the free exercise of religion.
Since then, the State Corporation Commission has granted incorporation certificates to churches and religious organizations. About 300 churches have incorporated, commission spokesman Ken Schrad told The Virginian-Pilot in October.
Robert Holsworth, professor and dean of VCU’s College of Humanities and Sciences, said the purpose of Ballot Question No. 2 is simply to clean up the constitution’s antiquated language regarding church incorporation.
“This will just codify, you might say, the kind of decision making that the courts are already making in Virginia,” said Holsworth, a political analyst.
Willis said the church incorporation ban has long served its historical purpose.
“When legislators put this in the Virginia Constitution, it was at a time where there was still a great deal of concern about the power of the church in Virginia,” he said. “It was a point where the whole notion of separation of church and state, for all practical purposes, hadn’t taken a foothold.”
Willis said Ballot Question No. 2 has not gotten much public or media attention because the prohibition of church incorporation is an old, outdated practice. He said the outcome is “already decided” because even if voters turn down the ballot measure, churches will still be able to incorporate in Virginia because of the 2002 court case.
While Ballot Question No. 2 asks voters to delete language from the constitution, Ballot Question No. 3 asks them to add to it. The latter ballot measure asks whether to amend the constitution to allow localities to provide partial property tax exemptions for “real estate with new structures and improvements in conservation, redevelopment, or rehabilitation areas.”
The purpose of the amendment is to create an incentive for developers to build news houses and businesses in older, usually run-down areas. Current law allows tax breaks, which are good for about eight to 15 years, for developers who renovate existing structures.
Morton Gulak, associate professor of urban studies and regional planning at VCU, said the new tax breaks could greatly improve the health of urban areas in Virginia.
He said a mixture of new and old housing in urban areas could lead to more diversity in inner cities. Newer houses in redevelopment or conservation areas would draw higher-income individuals and families, Gulak said, while lower-income individuals and families may live in the older, already existing houses.
“There’s going to be more of a variety of people’s incomes in the neighborhoods, which is a good thing for urban areas,” Gulak said of the proposed constitutional amendment’s impact. “That’s what a city is: It’s diversity in income and background and a lot of things, and this would add to that.”
He said a number of historic areas in Richmond, such as the Carver and Jackson Ward neighborhoods, could benefit from new development.
“It’s unusual in this case to give tax incentives for new buildings because they’re not historic. There isn’t any important history connected with them,” Gulak said. “However, in terms of the effect of preserving the whole neighborhood, it certainly is worth it, in my understanding.”
Holsworth, who has moderated several congressional debates this year, said Ballot Questions Nos. 2 and 3 have been mostly overlooked because the proposed marriage amendment has attracted so much scrutiny.
Willis agreed, saying the ACLU has spent most of its efforts this election opposing the marriage amendment, although the organization is also concerned about church incorporation. He said the ACLU did not want to take the risk of confusing voters by telling them, ” ‘Remember, vote “no” on No. 1 and “yes” on No. 2.’ ”
Holsworth said ballot measures can often confuse voters.
“One of the unfortunate things about constitutional amendments is that oftentimes, people really don’t know much about them until they get into the polling booth,” he said, adding that this causes voters to cast votes without understanding their implications.
While Virginians will decide on three proposed constitutional amendments, voters in some states, such as California, will decide on as many as 36. Forty-eight states, all but Mississippi and Kansas, will decide on at least one ballot measure.