Re: Maine town: No parking lot taxes for charities…except for churches

[hamilton02]

Maine has a strong state establishment clause as I remember.  Would that be the 
reason
for the "differential" treatment?  The question here is whether parsonages and 
church parking lots
are similarly situated to charitable organizations.  If so, there might be a 
claim.  If not, it will
be a tough slog for the ADF.







Marci

 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com




-Original Message-
From: Rick Duncan 
To: Law & Religion issues for Law Academics 
Sent: Wed, Apr 25, 2012 7:35 pm
Subject: Maine town: No parking lot taxes for charities…except for churches




FYI. ADF News Release:


FOR IMMEDIATE RELEASE



Maine town: No parking lot taxes for charities…except for churches

ADF files lawsuit to challenge tax assessed against church but not other 
charitable groups
Wednesday, April 25, 2012



KNOX, Maine — Alliance Defense Fund attorneys representing a Rockland church 
filed suit against the city Monday in Maine Superior Court in Knox.

The city granted the church a property tax exemption for its building but not 
for its parking lot and parsonage even though the city attorney admitted that 
all three would be exempt if the church were strictly a charitable 
organization. The church makes its facilities available to a wide range of 
charitable and community groups and events.

“Churches shouldn’t live in fear of being targeted by the government in ways 
other groups aren’t,” said ADF Senior Legal Counsel Joel Oster. “Churches are 
at a distinct disadvantage under the current law, which grants a tax exemption 
for the entire property of a non-church charitable group but only grants a 
partial exemption for churches. It’s unconstitutional to single out churches to 
be treated differently simply because they are churches while allowing 
virtually identical non-religious uses to have favorable tax treatment.”

According to the complaint filed in state court, Aldersgate United Methodist 
Church should have had its parking lot and parsonage exemption request granted 
under the church tax exemption statute but nonetheless additionally qualifies 
as a charitable organization.

“The Church qualifies as a charitable organization for all three of its 
properties because it provides education and religious instruction to the 
general public on how to live moral and healthy lives--lives that are not 
dependent on the government and that care for and help others in times of 
need,” the complaint states. “In addition, the Church makes its facilities 
available to a wide variety of public groups without charge, such as local 
orchestras, children’s development services, and branches of Alcoholics 
Anonymous and Narcotics Anonymous. The Church also provides financial support 
and volunteer assistance to local charities and ministry outreaches.”

Nonetheless, the city assessor only granted a tax exemption for the church’s 
main building and grounds. The assessor denied exemptions for the parking lot 
and parsonage. In a brief filed with the Board of Assessment Review, the city 
attorney admitted, “Were Aldersgate also entitled to exemption as a charitable 
and benevolent organization, the entire property would be exempt from taxation.”

The lawsuit, Aldersgate United Methodist Church v. City of Rockland, argues 
that the differential treatment between charitable institutions and churches is 
unconstitutional. Portland attorney Stephen C. Whiting, one of more than 2,100 
attorneys in the ADF alliance, is serving as local counsel.




Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902



"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)






 
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Re: Parsonage/Housing Exclusion

[Douglas Laycock]

We need a tax person here. But as I understand the general rule on 
employer-provided housing, housing is tax exempt to the employee only when it 
is provided for the convenience of the employer. It applies to lumber camps and 
army barracks and quarters on ships; it applied to lighthouse keepers when 
lighthouses needed keepers. I assume it applies to the White House. 

It applies to university presdents' houses that are used heavily for official 
entertaining, because in the crazy world of fundraising and high-level 
university politics, entertaining in the president's "home" turns out to have 
powerful benefits for the university, and having the president always at hand 
and on call also has its benefits for the university.

The exclusion was never designed as a fringe benefit for the employee, although 
it plainly has that consequence too. On the other hand, the employee doesn't 
own the house and doesn't benefit from any appreciation in the value of the 
house; he is also sheltered from any collapse in housing values as in 2008. 

My understanding is that the rules on convenience of the employer have been 
interpreted fairly tightly, because there is an obvious temptation to expand a 
way of delivering tax free income.

The point about parity between churches that can afford pasonages and those 
that cannot takes the collateral benefit to the employee as the policy, and 
wholly ignores the limitation to housing provided for the convenience of the 
employer. The original policy inherently discriminates between a small class of 
employers who need to require their employees to live in a particular place, 
owned by the employer, and the vast majority of employers with no such need. 
And if the employer cannot afford to provide housing, it is in no position to 
insist that any of its employees live in company housing for the employer's 
conveneince. The policy serves a very narrow purpose, so lack of broader parity 
is inherent in the policy.

So the ministerial housing allowance seems to go well beyond the 
convenience-of-the-employer housing allowance on which it was originally based. 
And this extra tax benefit seems to be based on religious status rather than 
any neutral criterion.  

On Mon, 23 Apr 2012 15:18:16 -0700
 "Scarberry, Mark"  wrote:
>I thought the housing allowance for clergy who buy or rent their own housing 
>was designed to provide parity with the churches that are able to provide 
>parsonages. Lots of newer and smaller religious groups do not have the 
>capacity to provide housing directly. Older and more established groups have 
>had the time to accumulate property. What about property taxes? I assume a 
>parsonage owned by a religious group is typically exempt from property taxes. 
>A home owned by a minister is not exempt, right? If I'm right on those points, 
>then the law already gives favorable treatment to groups that provide housing 
>in kind to their religious leaders.
>
>Mark S. Scarberry
>Pepperdine Univ. School of Law
>Malibu, CA 90263
>(310)506-4667
>

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
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RE: Parsonage/Housing Exclusion

[Finkelman, Paul]

I am not a tax person (that is an understatement) but my understanding is that 
if the university requires the president to live in a University house, then 
there are no tax consequences for the free rent.  It is sort of like living in 
your office.  With univ. presidents (or even law school deans), the issue is 
complicated because often the official house is far more house than the 
president would want, or even could afford.  We could have a rule that said the 
Univ. Pres (or the clergyman) should be taxed on the fair market value of the 
living area, but not the "public" area -- but with very big Univ. pres. houses, 
the living area might be more than the president could afford, and of course, 
the living area is also used for guests of the University.  Same, probably for 
ministers.  I am pretty sure this applies to the President (how would you tax 
the living area of the White House?) and Governors.

Quite frankly, I find this all rather de minimis.  Given the whole tax burden 
of the American people, the parsonage deductions for ALL ministers, priests, 
rabbis, mullahs, etc. must be a very small drop in the bucket.  Tax dividends 
and capital gains as ordinary income and you might get some real money for the 
treasury.

And even for a strong separationist (which I am), I wonder how you go about 
taxing and evaluating the parsonage.  And would that lead to some potential 
discrimination.

And, how would you tax priests, monks and nuns (some of whom take an oath of 
poverty) and live in a rectory, convent, monastery, or some other church 
building?



*
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 b...@jmcenter.org [b...@jmcenter.org]
Sent: Friday, April 27, 2012 1:02 AM
To: Law & Religion issues for Law Academics
Subject: Re: Parsonage/Housing Exclusion


In deed, the parsonage allowance goes far beyond the convenience of the 
employer/church. The church can structured a minister's income in such a way as 
to shift it mostly to the housing allowance. More specifically, the minister's 
housing allowance income is exempt from federal (and state) income taxes to the 
extent of the fair market value of the mortgage payments, real estate taxes, 
insurance, utilities, pool and landscaping expenses, etc. -- whatever is 
expended towards acquiring, operating and maintaining the minister's house. 
Interestingly, the minister gets to double dip by also taking the mortgage 
interest deduction if he or she itemizes his or her deductions.



We can be talking about a lot of dollars. For example, in a case involving Rick 
Warren of Saddleback Church in California, he was given a housing allowance of 
$80,000/yr. Warren v. Commissioner of Revenue, 302 F.3rd 1012 (9th Cir. 2002). 
Warren and IRS settled the case rather than having the court rule on the 
constitutionality of Sec. 107.



Bob



Robert V. Ritter

Jefferson Madison Center for Religious Liberty

A Project of the Law Office of Robert V. Ritter

Falls Church, VA

703-533-0236

On April 23, 2012 at 10:46 PM Douglas Laycock  wrote:

> We need a tax person here. But as I understand the general rule on 
> employer-provided housing, housing is tax exempt to the employee only when it 
> is provided for the convenience of the employer. It applies to lumber camps 
> and army barracks and quarters on ships; it applied to lighthouse keepers 
> when lighthouses needed keepers. I assume it applies to the White House.
>
> It applies to university presdents' houses that are used heavily for official 
> entertaining, because in the crazy world of fundraising and high-level 
> university politics, entertaining in the president's "home" turns out to have 
> powerful benefits for the university, and having the president always at hand 
> and on call also has its benefits for the university.
>
> The exclusion was never designed as a fringe benefit for the employee, 
> although it plainly has that consequence too. On the other hand, the employee 
> doesn't own the house and doesn't benefit from any appreciation in the value 
> of the house; he is also sheltered from any collapse in housing values as in 
> 2008.
>
> My understanding is that the rules on convenience of the employer have been 
> interpreted fairly tightly, because there is an obvious temptation to expand 
> a way of delivering tax free income.
>
> The point about parity between churches that can afford pasonages and those 
> that cannot takes the collateral benefit to the employee as the policy, and 
> wholly ignores the limitation to housing provi

RE: Accommodation

[Eric Rassbach]

If I can revive this string -- I don't think that either ban Eugene posits 
below should be unconstitutional. The fact that lawgivers may have had 
religious motivations ("nonrational" or otherwise) would not ipso facto result 
in an Establishment Clause violation. If you ask many lawgivers they will often 
identify their personal religious beliefs as a reason for their support for 
particular political positions. That will be with us for as long as we have 
lawmakers with religious beliefs. See, e.g., 
http://money.cnn.com/2012/02/02/news/economy/obama_tax_rich_jesus/index.htm.

An interesting parallel from overseas are the bans on cow slaughter in various 
Indian states:  
http://www.dahd.nic.in/dahd/reports/report-of-the-national-commission-on-cattle/chapter-ii-executive-summary/annex-ii-8.aspx.
  Say there were an American municipality that happens to have a high 
proportion of Hindus and that jurisdiction decided to implement a ban on cow 
slaughter. Would that be unconstitutional?  I think the answer has to be no.





From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Friday, April 13, 2012 1:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: Accommodation

My apology for bringing this up again, but I'd like to hear what people 
think about it, and I thought it might be a relevant analogy.

In 1998, California banned the sale of horsemeat for human consumption, 
based on nonrational aesthetic / moral judgments about the impropriety of 
eating horses.  Say that a state bans the sale of pork for human consumption, 
based on the desire to minimize the risk that people would accidentally eat it 
(and thus violate their nonrational religious objections to eating pork), or 
that people would be economically pressured by restaurants, food processing 
plants, and so on into serving it or even tasting it (as a chef often must when 
he's cooking a dish).  If the horsemeat ban is constitutional, why wouldn't the 
pork ban is constitutional?

Alternatively, say some other religion bans the eating of pigs not 
because they are seen as unclean, but because they are seen as especially good 
and close to humans -- much the same reason, I think, why some people oppose 
the eating of horses.  (I've heard it said that pigs are quite intelligent, for 
instance.)  And say that a jurisdiction bans the sale of pork for food 
purposes, because of the influence of that religion.  Again, if the hosemeat 
ban is constitutional, why wouldn't the pork ban be constitutional, too?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
> Sent: Friday, April 13, 2012 10:12 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Accommodation
>
> Ellis West and I have discussed our posts off list, and I may have been 
> attacking a
> bit of a straw man. He says he did not mean to suggest that religious 
> exemptions
> are generally suspect under the Establishment Clause; he was still writing in 
> the
> context of the no-pork policy for the prison menu, which he and I agree is 
> not really
> an exemption. I misread, or overread, his later post.
>
> I am inclined to think that the no-pork policy has a secular purpose for the 
> same
> reasons that exemptions have a secular purpose. What troubles me about the no-
> pork policy, especially if it were imposed outside the prison context, is 
> that it
> seems to force everyone to observe a religious practice. It would be like the
> Sunday closing laws, with the same sorts of arguments about whether it 
> imposes a
> religious observance or can somehow be understood as simply a secular rule.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law University of Virginia Law 
> School
> 580 Massie Road
> Charlottesville, VA  22903
>  434-243-8546
>
>
> ___
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> change options, or get password, see http://lists.ucla.edu/cgi-
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> 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.

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mes

Parsonage/Housing Exclusion

[Scarberry, Mark]

I thought the housing allowance for clergy who buy or rent their own housing 
was designed to provide parity with the churches that are able to provide 
parsonages. Lots of newer and smaller religious groups do not have the capacity 
to provide housing directly. Older and more established groups have had the 
time to accumulate property. What about property taxes? I assume a parsonage 
owned by a religious group is typically exempt from property taxes. A home 
owned by a minister is not exempt, right? If I'm right on those points, then 
the law already gives favorable treatment to groups that provide housing in 
kind to their religious leaders.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, April 23, 2012 7:41 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Analogous Secular Interests

As a beneficiary of that exclusion, I can confirm that the law has not changed. 
In our case, the house is near the center of grounds, we are required by 
contract to live in it, and my wife hosts some 200 events and 15,000 visitors a 
year. (I show up when she says it's really important.) The staff keeps records 
so that we could document all this if need be. Our living quarters are 
upstairs, over the store.

Some parsonages and rectories would qualify under these rules, but many would 
not, and my (only partially informed) understanding is that the parsonage 
allowance is much more generous. It covers housing allowances that the pastor 
can use to buy his own house. The house need not be adjacent to the church. And 
I don't know how many pastors entertain at the parsonage, or counsel 
parishioners there, or otherwise use the house in their work for the church.

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 Vance R. Koven
Sent: Monday, April 23, 2012 9:59 AM
To: Law & Religion issues for Law Academics
Subject: Re: Analogous Secular Interests

I always thought the parsonage exemption was a specialized case of the 
employer-furnished housing exemption. Unless the rules were changed when I 
wasn't looking (and I haven't been looking for quite some time), the rental 
value of the on-or-near-campus house a university provides its president (for 
example) is excludable from the president's income because it serves the 
employer's convenience.

Vance

--
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
On Thu, Apr 19, 2012 at 2:43 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
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 a