Perhaps a comparison to the interpretation of "minister of the gospel" in
Internal Revenue Code section 107, which provides a gross income exclusion for
the rental value of housing provided to ministers of the gospel (the "parsonage
exclusion") is helpful. Perhaps it raises more questions. Perhaps it is or is
not (or will turn out to be or not to be) coterminous with the definition for
other purposes. It is relevant to Alan's question in the sense that a gross
income exclusion (like a tax deduction or credit) is equivalent in many ways to
funding.
>From my BNA Tax Management, Inc., Gross Income: Overview and Conceptual
>Aspects, two paragraphs (without footnotes) addressing the scope of the
>exclusion in terms of who qualifies:
"Although the language of §107 refers to ministers of the gospel, the exclusion
applies to persons who are ordained, commissioned, or licensed to perform
substantially all the religious functions within the practice of the
denomination. Thus, the exclusion is available for rabbis and cantors of the
Jewish faith, ordained deacons, ordained gospel ministers who administer
sacraments, preach, and conduct worship services, and unordained but
commissioned or licensed members of a religious denomination who perform
substantially all of the religious functions within the practice of the
denomination. But the exclusion is not available to unordained, uncommissioned
and unlicensed persons who perform nonreligious services for a church.
The §107 exclusion also applies to retired ministers of the gospel.
Payments to surviving spouses, however, are not covered by the exclusion. Also
not covered are payments to employees of religious organizations who are not
ordained, commissioned, or licensed ministers and who do not perform any
religious functions. No exclusion is available to a taxpayer whose duties as a
religious functionary did not require performance by a person with ministerial
authority and that were more organizational than religious in nature."
Jim Maule
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Thursday, January 12, 2012 1:01 AM
To: Law & Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on
religious grounds
Tom,
I have long since given up trying to predict how Supreme Court justices will
decide future cases (or to assume that there will be logical consistency or
even intellectual integrity in all opinions.) But Justice Roberts clearly and
repeatedly emphasizes the title, status, and acknowledged role of minister or
clergy as significant factors in reaching his decision in this case. Why are
you so confident that all of this language in the opinion is superflous? I
agree that Alito and Kagan's concurrence provides more support for including
some lay teachers in the exception. But even they say "What matters is that
respondent played an important role as an instrument of her church's religious
message and as a leader of its worship activities." The words "important role"
and "a leader" arguably mean something different than "some role" and "a
participant."
Finally, of course, there is the question of how the understanding of who
qualifies for the ministerial exception relates to the question of what
positions the government can fund in religious institutions. Can the government
fund the salary of teachers who play an important role as an instrument of
their church's religious message and as a leader in its worship activities? If
the answer to that question is "Yes" and it is also true that such teachers are
enough like clergy in their religious functions to be included in the
ministerial exception, would it follow that government can also fund the salary
of clergy? Is it constitutionally permissible for the government to refuse to
fund teaching positions at a religious school which refuses to hire
African-Americans, women, and the disabled as teachers?
Alan
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Berg, Thomas C. [tcb...@stthomas.edu]
Sent: Wednesday, January 11, 2012 7:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on
religious grounds
Alan,
I agree that the majority leaves open the issue of lay teachers. But since
three justices take a broader approach to defining a minister, all you need for
a majority in a later case is two more votes, and Roberts and Scalia seem
reasonable prospects to me in a case that presents the issue. Thomas would
defer heavily to the religious organization's characterization of an employee
as a minister. And Alito and Kagan say that ordained or "commissioned" status
isn't crucial, that the criterion is "positions of substantial religious
importance"-including those "teaching and conveying the tenets of the faith to
the next generation"--and that "the constitutional protection of religious
teachers is not somehow diminished when they take on secular functions in
addition to their religious ones. What matters is that respondent played an
important role as an instrument of her church's religious message and as a
leader of its worship activities." I can see many lay teachers in seriously
religious schools satisfying such a test. Kagan's agreement with that standard
is quite significant, as is her joining the Alito concurrence overall.
Tom
-----------------------------------------
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