Bob’s point 1 means the issue won’t arise very often. But when a non-theist has
a deeply held moral commitment that is analogous to similar religious
commitments, he ought to be protected.
On point 2, the lack of a sacred text is just a matter of proof, and not in
itself so important. The lack of an organized body with systematic teachings is
the bigger proof obstacle. But as most list members know, nontheistic objection
to military service was protected as a matter of statutory interpretation in
the Vietnam-era cases. I fear it would be a tougher sell to today’s Court,
although Justice O’Connor endorsed those cases, apparently as a matter of
constitutional law, in her concurring opinion in Kiryas Joel.
On point 3, the parsonage allowance is not a protection for conscience and
really presents a quite different set of issues. It does not relieve a burden
on the exercise of religion, and it is not part of a neutral general category;
it is probably a longstanding Establishment Clause violation. But it is also
likely that no one has standing to challenge it, especially after Arizona v.
Winn.
It is not available to all employees of the church, but only to ministers. So
it should not be available to the whole staff of FFRF. But if there are
employees whose job is to teach a non-theistic belief system to followers, or
perhaps to proselytize the unconverted, they should be eligible for the
parsonage allowance. That’s how I would set up the claim if I were representing
FFRF.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Thursday, April 19, 2012 2:15 PM
To: Law & Religion issues for Law Academics
Subject: Analogous Secular Interests
Marty,
I'm very curious about your reference to "analogous secular interests" in your
recent accommodation and pork post. I would appreciate some elaboration.
#1 - This concept occasionally came up at the American Humanist Association
during the three years that I served as staff attorney. The big impediment is
that nontheists don't have "sincerely held religious beliefs", e.g., with
respect to foods, clothing, birth control, death penalty. Instead, our
(atheists, agnostics, freethinkers, secular humanists) notions of these items
are based on personal preference, personal philosophy or (personal) reason.
Altho "secular humanism" was mentioned in a footnote in Torcaso v. Watkins
(1961) as being a religion, its lack of a sacred text or creed make it very
difficult -- at law -- to be similarly situated. For example, Jewish men wear
yarmulke, Muslim women a hijab or Sikh men a turban. But a Humanist? In one
discussion I had, the question was whether a person (any person) who wanted to
a baseball style cap at work where persons of religion where allowed to wear
head coverings as an accommodation of religion. The Humanist hypothetically
wanted to wear the cap simply because (a) he liked it or (b) he was bald --
neither a sincerely held religious belief. If a head covering is a head
covering is a head covering, is not the Humanist entitled to the same civil
rights as a Jew, Muslim or Sikh?
#2 - Perhaps a better example would a Humanist who objected to serving in the
military and killing on humanism grounds. The belief could be sincerely held --
but not universally held by Secular Humanists. And again, no sacred text to
confirm.
#3 - An interesting case is currently being litigated in Wisconsin by the
Freedom From Religion Foundation in which it is arguing that its Atheist
personnel (whom the FFRF board authorized a housing allowance) are entitled to
take the Section 107 parsonage housing allowance exemption on their federal
income tax returns.
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
6809 Kincaid Avenue
Falls Church, VA 22042
703-533-0236
On April 12, 2012 at 7:15 PM Marty Lederman <lederman.ma...@gmail.com> wrote:
Just a slight emendation to Doug's post, with which I think he'll agree: Yes,
virtually every Justice has concluded that religious accommodations *can be*
constitutional, at least if they alleviate significant state-imposed burdens on
religious exercise, as the Ohio prison accommodation would appear to do here.
But that doesn't mean all such accommodations *are* constitutional. In
particular, serious constitutional questions can be raised where the
accommodation imposes a significant burden on third parties, and perhaps also
where analogous secular interests are not treated equally (the latter concern
being most acute where the accommodation creates a discrepancy in the treatment
of other first amendment interests, such as speech and assembly).
Neither of these concerns appears to be serious in the Ohio case. In
particular, although the plaintiff alleged that the prison's removal of pork
from his diet was cruel and unusual punishment, I think it safe to say most
courts would agree with Judge Gwin that "pork is not one of the necessities of
life." But cf. http://www.youtube.com/watch?v=3EHsbIcV-6I
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