I agree that this provision cannot really be defended on any sound theoretical basis in the face of an establishment challenge. But I see 5 or more votes for this being upheld because it is just a modern updating of the old idea of the manse, clergy house, parish house, rectory, vicarage — where the church actually owned the residence and minister/pastor/priest lived there rent free — instead of the church owning a house that the minister/pastor/priest lives in, the religious organization subsidizes the minister to buy the house she wants rather than one that may be very unsuited to her needs. So I can see a majority saying if one is ok, the other is ok — history trumps equality. The IRS does not need to treat like things alike, and never has. And it can decide what things are alike — this is like the manse, not like compensation to all chief executives of non profits.
Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "In these words I can sum up everything I've learned about life: It goes on." Robert Frost On Nov 28, 2013, at 12:38 PM, Finkelman, Paul <paul.finkel...@albanylaw.edu> wrote: > The IRS code has lots of breaks for special interests. Is this any different > than tax breaks for wind turbines or middle class home owners who deduct > their interest payments? I bet Roberts and Scalia will find no difference. > And it is historical and Thomas and Scalia love old historical reasons for > things that make no sense. Alito loves religion. So where does Kennedy > stand? Will Ginsberg be persuaded on IRS grounds? > > > > ************************************************* > Paul Finkelman, Ph.D. > President William McKinley Distinguished Professor of Law > Albany Law School > 80 New Scotland Avenue > Albany, NY 12208 > > 518-445-3386 (p) > 518-445-3363 (f) > > paul.finkel...@albanylaw.edu > www.paulfinkelman.com > ************************************************* > > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > on behalf of Michael Peabody [peabody...@gmail.com] > Sent: Thursday, November 28, 2013 12:30 PM > To: religionlaw@lists.ucla.edu > Subject: Ministerial Housing Allowance Ruled Unconstitutional > > This week U. S. District Judge Barbara Crabb of the Western District of > Wisconsin ruled that the ministerial tax-free housing allowance is > unconstitutional in response to a challenge brought by the Freedom From > Religion Foundation. Essentially, the tax-free allowance permits churches to > pay ministers a salary (taxable) and a separate housing allowance (not > reported or taxed) up to the "reasonable" rental value of property. If > ministers are also mortgage holders, they can separately deduct interest from > their salary. > > This case will likely be appealed up to the U.S. Supreme Court and members of > the clergy are extremely concerned and I can see why since it seems that > there's no real constitutional basis to providing members of the clergy with > an exemption but excluding all others. So far proponents of the exemption > have failed to articulate an argument supporting its constitutionality other > than a mushy Marsh v. Chambers style historical argument. > > I guess my first question is whether, assuming arguendo that the allowance is > ultimately (somehow) found constitutional, whether the expanded definition of > the "ministerial exception" under Hosanna-Tabor could entitle non-clergy > religious employees to a non-taxable housing allowance. Could it then expand > to non-profits? (It is noted that in Hosanna-Tabor, the teacher Cheryl Perich > was actually getting the tax-free housing allowance, but this is not common > practice among teachers in parochial schools. This fact alone along with her > extensive religious training and religious commissioning may serve to > differentiate her from other parochial teachers but the Court doesn't seem to > want to come up with criteria for determining who is a religious teacher and > who isn't.) > > Secondly, since I'm doing some writing on the subject, I'm wondering if you'd > be willing to look into your crystal ball and predict the fate of the > ministerial tax-free housing allowance. > > Thanks! > > Michael Peabody, Esq. > Editor - ReligiousLiberty.TV > http://www.religiousliberty.tv > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
