Re: RE: Tax On Theology Majors
I would be surprised if the University of Washington offered a major in "theology." If it did, I am positive it would be a "descriptiist" major looking at how various religions treat certain issues rather than educating students exclusively into the presumptively normative creeds of specific religions. Also, it seems to me that Stuart Buck is absolutely correct that this is nothing more (or less) than a framing problem, as is true, say, of the "endorsement" test, and, therefore, subject to all of the problems posed when the Supreme Court purports to read the social meaning of a public policy that will indeed look one way to a trained economist and another way to a layperson. Recall Bruce Ackerman's book many years ago on Private Property and the Constitution, in which he distinguished sharply between the "scientific" (i.e., economic) understanding of property and the "ordinary" understanding and pointed to the strikingly different results in, say, takings analysis depending on which one of these understanding (or frames) one adopted. sandy -Original Message- From: "Kim Colby" <[EMAIL PROTECTED]> To: "'Law & Religion issues for Law Academics'" <[EMAIL PROTECTED]> Date: Thu, 27 May 2004 12:19:07 -0400 Subject: RE: Tax On Theology Majors Rick's discussion touches a point that I find particularly troubling about the Locke decision. Rick is correct that Joshua Davey could have kept the scholarship if he had double enrolled at two colleges and used the scholarship to pay for tuition at the college where he had not declared a theology major. But more troubling to me is the fact that Davey could have enrolled at the University of Washington, declared a theology major, and kept the scholarship. It seems downright weird that the State of Washington allegedly has a strong state interest in not giving equal funding to a handful of theology majors who otherwise qualify for its widely available Promise Scholarships, yet that strong interest in not assisting in clergy training fails to prevent the State of Washington from offering and funding the study of theology at its own universities. Perhaps this point goes to whether Washington State's proffered interest in not funding clergy training should have met the rational basis standard of review that the Court seemed to employ. Kim Colby -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Thursday, May 27, 2004 11:38 AM To: Law & Religion issues for Law Academics Subject: Re: Tax On Theology Majors Doug and Marty's intuitions are mine as well. I am just trying to figure out reasoning that decides Locke one way and the tax case the other. Another distinction emhasized by Locke and which forms part of its narrow holding is that in Locke the student could still keep the scholarship (in theory at least) by attending a second college and pursuing an acceptable major there. Thus, if Locke had attended both seminary and, say, U of W, he could have used his scholarship to attend the U while still pursuing his theology degree w/out penalty. In other words, theology majors are not denied a scholarship, they simply can not use it to pay for their pursuit of a theology major. In the hypo, that is not possible. The $1,000 tax would hit Locke merely for majoring in theology. Rick --- Douglas Laycock <[EMAIL PROTECTED]> wrote: > Rick Duncan wrote: > > >I think the point is that from an economic > >perspective, there is little or no difference > between > >a targeted $1,000 tax and a targeted exclusion from > a > >generally available $1,000 benefit. The Court has specifically made > >this point on many occasions including, I believe, in Sherbert. > > Sometimes they say this, and sometimes they > say the zero point > matters. Walz v. New York and Lemon v. Kurtzman are > only one year apart; a > tax exemption looked very different from a cash > subsidy. They also have a > strong intuition that no one is entitled to a cash > subsidy; it is not a > judicial function to order one. Rebuttable, but > perhaps only in speech > cases. > > I share Marty's intuition that this > hypothetical is one where the > zero point would matter to them; a flagrantly > discriminatory tax would look > different from a flagrantly discriminatory refusal > to subsidize. The long > tradition of no tax and no subsidy no doubt affects > their intuition on > both questions. > > > > > Douglas Laycock > University of Texas Law School > 727 E. Dean Keeton St. > Austin, TX 78705 > 512-232-1341 (voice) > 512-471-6988 (fax) > [EMAIL PROTECTED] > > ___
Re: Tax On Theology Majors
On Thursday, May 27, 2004, at 10:49 AM, Rick Duncan wrote: I think the point is that from an economic perspective, there is little or no difference between a targeted $1,000 tax and a targeted exclusion from a generally available $1,000 benefit. One difference in practice would be that all the targets get hit with the tax whereas only a few would take advantage of the benefit. Another is forcing someone to do something (pay tax) versus allowing someone to choose something. There are real differences both economic and otherwise. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "It is by education I learn to do by choice, what other men do by the constraint of fear." Aristotle ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
I guess there is a difference between the questions whether a state may target religion by imposing a tax on it and whether a state may avoid taxing others to pay for religion. Louise Weinberg [EMAIL PROTECTED] At 09:49 AM 5/27/04, Rick wrote: If it is pure rational basis, I guess the legitimate interest might be in raising revenue. The law is generally very deferential toward classifications concerning tax policy, even toward classifications that appear irrational(just look at the IRC for an infinity of examples). I think the point is that from an economic perspective, there is little or no difference between a targeted $1,000 tax and a targeted exclusion from a generally available $1,000 benefit. The Court has specifically made this point on many occasions including, I believe, in Sherbert. If the latter is a trivial burden on Free Ex, so also is the former. I am sure the Court would strike down the targeted tax as a violation of the core of Smith, but it is difficult to square this result with Locke. Unless Locke is, as I think it is, a narrow decision carving out a special rule allowing states to exclude clergy-in-training from generally available funding programs. Rick = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
I was going to respond to Doug along these lines - but Marty beat me to it and wrote a lot better post than I would have. Alan Brownstein UC Davis At 03:13 PM 5/27/2004 -0400, you wrote: I agree with Doug that, as a practical matter, the denial of the scholarship operated as a penalty on Davey's choice of majoring in theology -- what we would ordinarily think of as an unconstitutional condition: Davey's religious choice realistically prevented him from using the $$ even to pay for non-theology courses, such as courses taken in pursuit of his business major. Indeed, as you know, I had written before the decision that that was the obvious narrow ground on which the Court could, and likely would, decide the case in favor of Davey, avoiding the need to opine on whether the state could decline to subsidize the religious study itself. Obviously, the Court did not rule that way. But as a doctrinal matter, the case can't really be read as supporting the power of the state to impose a penalty on religious exercise, owing to the truly weird and conclusory statement and footnote that the state "does not require students to choose between their religious beliefs and receiving a government benefit," because "Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology." This is not a new concept: It derives from the "separate affiliate" doctrine of Regan and League of Women Voters, which came to fruition in Rust v. Sullivan. Recall that in Rust, Rehnquist similarly (but in less conclusory fashion) turned aside an unconstitutional-conditions argument by explaining that recipient clinics remained free to engage in abortion-related counseling by way of a "physically and financially separate" entity having "objective integrity and independence" from the funded clinic, with separate accounting records and separate personnel, and a degree of physical separation, as well. Of course, this option was as a practical matter as unrealistic for the recipient clinics in Rust as was the option for Davey to attend two undergraduate institutions. Nevertheless, the idea in both cases is (as the Court put it last week in Sabri) that "money is fungible," and that therefore the state can require a very severe degree of segregation and independence to ensure that its funds do not support the disfavored activity. I tend to think that this doctrine ought to be a bit more sensitive to the realistic burdens of "segregation," and to the fact that such requirements often impose -- in practical effect -- a penalty on protected conduct. But it's very difficult to know quite where to draw the line. Moreover, this same "fungibility" argument is what underlies the requirement in title VI, title IX, the Rehab Act and RLUIPA that a governmental funding recipient -- defined at the state level as an entire state agency -- not engage in the prohibited activity (e.g., sex discrimination; unnecessary burdening of religious exercise) in all of its operations if it receives a single federal dollar in support of any of its activities. See pages 13-18 of the SG's BIO in Jim C. (a Rehab Act case), which suggest the affinity between the Rust separate-affiliate rule and the post-Grove City "operations of the program or activity" conditions in the Rehab Act, et al. - Original Message - From: "Douglas Laycock" <<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" <<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]> Sent: Thursday, May 27, 2004 2:36 PM Subject: Re: Tax On Theology Majors > Alan Brownstein wrote: > > > For the same reason in Locke, if the student majors in theology at a > college he pays for with his own funds, he can not be denied > a > scholarship for his other studies. > > Well, actually, he could be and he was. If he declared a major in > Theology, he lost the scholarship entirely; he could not use it for general > ed requirements or secular electives, or for his other major in Business > Administration. Rehnquist ducked that by saying he could have used a > scholarship to major in Business Admin at another school. But that is so > impractical, and double majors such a small fraction of students, that I > have trouble viewing that point as anything more than a makeweight. > > One of the more bizarre things about Locke is that he could have > had his scholarship, and taken every course he took, including all the > theology courses, if he had simply declared a single major in Business > Admin and taken the theology courses as electives without declaring a > second major. Maybe that's just the kind of weird i
Re: Tax On Theology Majors
I agree with Doug that, as a practical matter, the denial of the scholarship operated as a penalty on Davey's choice of majoring in theology -- what we would ordinarily think of as an unconstitutional condition: Davey's religious choice realistically prevented him from using the $$ even to pay for non-theology courses, such as courses taken in pursuit of his business major. Indeed, as you know, I had written before the decision that that was the obvious narrow ground on which the Court could, and likely would, decide the case in favor of Davey, avoiding the need to opine on whether the state could decline to subsidize the religious study itself. Obviously, the Court did not rule that way. But as a doctrinal matter, the case can't really be read as supporting the power of the state to impose a penalty on religious exercise, owing to the truly weird and conclusory statement and footnote that the state "does not require students to choose between their religious beliefs and receiving a government benefit," because "Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology." This is not a new concept: It derives from the "separate affiliate" doctrine of Regan and League of Women Voters, which came to fruition in Rust v. Sullivan. Recall that in Rust, Rehnquist similarly (but in less conclusory fashion) turned aside an unconstitutional-conditions argument by explaining that recipient clinics remained free to engage in abortion-related counseling by way of a "physically and financially separate" entity having "objective integrity and independence" from the funded clinic, with separate accounting records and separate personnel, and a degree of physical separation, as well. Of course, this option was as a practical matter as unrealistic for the recipient clinics in Rust as was the option for Davey to attend two undergraduate institutions. Nevertheless, the idea in both cases is (as the Court put it last week in Sabri) that "money is fungible," and that therefore the state can require a very severe degree of segregation and independence to ensure that its funds do not support the disfavored activity. I tend to think that this doctrine ought to be a bit more sensitive to the realistic burdens of "segregation," and to the fact that such requirements often impose -- in practical effect -- a penalty on protected conduct. But it's very difficult to know quite where to draw the line. Moreover, this same "fungibility" argument is what underlies the requirement in title VI, title IX, the Rehab Act and RLUIPA that a governmental funding recipient -- defined at the state level as an entire state agency -- not engage in the prohibited activity (e.g., sex discrimination; unnecessary burdening of religious exercise) in all of its operations if it receives a single federal dollar in support of any of its activities. See pages 13-18 of the SG's BIO in Jim C. (a Rehab Act case), which suggest the affinity between the Rust separate-affiliate rule and the post-Grove City "operations of the program or activity" conditions in the Rehab Act, et al. - Original Message - From: "Douglas Laycock" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> Sent: Thursday, May 27, 2004 2:36 PM Subject: Re: Tax On Theology Majors > Alan Brownstein wrote:> > > For the same reason in Locke, if the student majors in theology at a > college he pays for with his own funds, he can not be denied > a > scholarship for his other studies.> > Well, actually, he could be and he was. If he declared a major in > Theology, he lost the scholarship entirely; he could not use it for general > ed requirements or secular electives, or for his other major in Business > Administration. Rehnquist ducked that by saying he could have used a > scholarship to major in Business Admin at another school. But that is so > impractical, and double majors such a small fraction of students, that I > have trouble viewing that point as anything more than a makeweight.> > One of the more bizarre things about Locke is that he could have > had his scholarship, and taken every course he took, including all the > theology courses, if he had simply declared a single major in Business > Admin and taken the theology courses as electives without declaring a > second major. Maybe that's just the kind of weird individual case that > happens when the law relies on a general category or rule of thumb, but at > least in Locke's case, denial of the scholarship operated as a penalt
Re: Tax On Theology Majors
Alan Brownstein wrote: > For the same reason in Locke, if the student majors in theology at a college he pays for with his own funds, he can not be denied > a scholarship for his other studies. Well, actually, he could be and he was. If he declared a major in Theology, he lost the scholarship entirely; he could not use it for general ed requirements or secular electives, or for his other major in Business Administration. Rehnquist ducked that by saying he could have used a scholarship to major in Business Admin at another school. But that is so impractical, and double majors such a small fraction of students, that I have trouble viewing that point as anything more than a makeweight. One of the more bizarre things about Locke is that he could have had his scholarship, and taken every course he took, including all the theology courses, if he had simply declared a single major in Business Admin and taken the theology courses as electives without declaring a second major. Maybe that's just the kind of weird individual case that happens when the law relies on a general category or rule of thumb, but at least in Locke's case, denial of the scholarship operated as a penalty for declaring a theology major. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
I don't know that I can explain or rationalize constitutional doctrine relating to taxes and subsidies, but the distinction between taxes and subsidies, burdens and benefits, takings and givings is fairly pervasive in constitutional law -- so much so that it is hardly surprising when the Court grounds decisions on these distinctions. In addition to free speech and free exercise rights, the dormant commerce clause and Takings clause cases recognize some variation of this distinction. Other rights, such as the right to have an abortion, accept the principle that the state can subsidize related and alternative activities (child birth and medical care) while declining to subsidize abortion. Only time and future Court decisions will tell us how broadly Locke is going to be read -- but there certainly is a foundation for grounding its analysis on the distinction between subsidizing the exercise of religion and taxing or regulating the exercise of religion. A doctrinal explanation for deciding Locke and the Tax hypo differently might read like this -- There is substantial case law prohibiting the state from penalizing the exercise of rights by denying individuals unrelated benefits (that is, benefits not involving subsidizing the exercise of the right itself) that they would otherwise be entitled to -- but for the fact that they exercised a right. It would be unconstitutional to deny a woman medicaid benefits for treating a broken leg because the woman elected to have an unsubsidized abortion. Now if the state gives women medical "scholarships" -- subsidies that they can use for medical care -- but restricts the use of the subsidy by prohibiting its use to pay for an abortion, I think that is probably constitutional under Harris v. McRae. But if the woman has an abortion that she pays for with her own funds, and the state denies her the medical subsidy for other treatments because she did so -- I think that is an unconstitutional penalty. For the same reason in Locke, if the student majors in theology at a college he pays for with his own funds, he can not be denied a scholarship for his other studies. In a sense, we could consider a tax on theology majors or a tax on having an abortion as a penalty on the exercise of the right. It is just like denying a person an unrelated benefit because they exercise a right. The person loses something extra because they exercise a right. Of course this depends on the premise that the state's refusal to subsidize the exercise of a right is different than the state's denial of unrelated benefits in response to an individual's exercise of a right. That premise may be illogical or just plain wrong -- but it is not uncommon. Alan Brownstein UC Davis At 08:37 AM 5/27/2004 -0700, you wrote: Doug and Marty's intuitions are mine as well. I am just trying to figure out reasoning that decides Locke one way and the tax case the other. Another distinction emhasized by Locke and which forms part of its narrow holding is that in Locke the student could still keep the scholarship (in theory at least) by attending a second college and pursuing an acceptable major there. Thus, if Locke had attended both seminary and, say, U of W, he could have used his scholarship to attend the U while still pursuing his theology degree w/out penalty. In other words, theology majors are not denied a scholarship, they simply can not use it to pay for their pursuit of a theology major. In the hypo, that is not possible. The $1,000 tax would hit Locke merely for majoring in theology. Rick --- Douglas Laycock <[EMAIL PROTECTED]> wrote: > Rick Duncan wrote: > > >I think the point is that from an economic > >perspective, there is little or no difference > between > >a targeted $1,000 tax and a targeted exclusion from > a > >generally available $1,000 benefit. The Court has > >specifically made this point on many occasions > >including, I believe, in Sherbert. > > Sometimes they say this, and sometimes they > say the zero point > matters. Walz v. New York and Lemon v. Kurtzman are > only one year apart; a > tax exemption looked very different from a cash > subsidy. They also have a > strong intuition that no one is entitled to a cash > subsidy; it is not a > judicial function to order one. Rebuttable, but > perhaps only in speech > cases. > > I share Marty's intuition that this > hypothetical is one where the > zero point would matter to them; a flagrantly > discriminatory tax would look > different from a flagrantly discriminatory refusal > to subsidize. The long > tradition of no tax and no subsidy no doubt affects > their intuition on > both questions. > > > > > Douglas Laycock > University of Texas Law School > 727 E. Dean Keeton St. > Austin, TX 78705 >
Re: Tax On Theology Majors
Obviously it's a framing bias, right? The two policies are equivalent in economic terms: The person who studies theology is $1000 worse off than everyone else. Our intuitions might be to treat the policies differently, but isn't that irrational? It's like opposing the gas station's "credit card premium" charge, but being fooled if they have the same price structure but use the term "cash discount." It reminds me of what Sunstein says in discussing framing biases: People are averse to losses, but whether an event "codes" as a loss or a gain depends not on simple facts but on a range of contextual factors, including how the event is framed. The status quo is usually the reference point, so that losses are understood as such by reference to existing distributions and practices; but it is possible to manipulate the frame so as to make a change "code" as a loss rather than a gain, or vice versa. Consider a company that says "cash discount" rather than "credit card surcharge"; or a parent who says that for behavior X (rather than behavior Y) a child will be rewarded, as opposed to saying that for behavior Y (rather than behavior X) a child will be punished . . . . Cass R. Sunstein, Behavioral Analysis of Law, 64 U. Chi. L. Rev. 1175, 1180 (1997). Or consider the following passage: The consumer encounters similar tactics at the next stop after her car purchase, the gas station. Much attention has been given to the notion of offering cash discounts rather than credit card premiums. 83 "Indeed, the credit card lobby is said to insist that any price difference between cash and card purchases should be labeled a cash discount rather than a credit surcharge." 84 The credit card industry does so because a "cash discount" takes advantage of framing effects. As we discussed in our companion article, the frame within which information is presented can significantly alter one's perception of that information, especially when one can perceive the information as a gain or a loss. 85 By avoiding the perception that paying by credit card results in a loss, gas retailers also avoid a decrease in demand from credit card consumers. Jon Hanson and Douglas Kysar, Taking Behavioralism Seriously: Evidence of Market Manipulation, 112 Harv. L. Rev. 1420, 1441 (1999). From: Rick Duncan <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Subject: Re: Tax On Theology Majors Date: Thu, 27 May 2004 08:37:59 -0700 (PDT) Doug and Marty's intuitions are mine as well. I am just trying to figure out reasoning that decides Locke one way and the tax case the other. Another distinction emhasized by Locke and which forms part of its narrow holding is that in Locke the student could still keep the scholarship (in theory at least) by attending a second college and pursuing an acceptable major there. Thus, if Locke had attended both seminary and, say, U of W, he could have used his scholarship to attend the U while still pursuing his theology degree w/out penalty. In other words, theology majors are not denied a scholarship, they simply can not use it to pay for their pursuit of a theology major. In the hypo, that is not possible. The $1,000 tax would hit Locke merely for majoring in theology. Rick --- Douglas Laycock <[EMAIL PROTECTED]> wrote: > Rick Duncan wrote: > > >I think the point is that from an economic > >perspective, there is little or no difference > between > >a targeted $1,000 tax and a targeted exclusion from > a > >generally available $1,000 benefit. The Court has > >specifically made this point on many occasions > >including, I believe, in Sherbert. > > Sometimes they say this, and sometimes they > say the zero point > matters. Walz v. New York and Lemon v. Kurtzman are > only one year apart; a > tax exemption looked very different from a cash > subsidy. They also have a > strong intuition that no one is entitled to a cash > subsidy; it is not a > judicial function to order one. Rebuttable, but > perhaps only in speech > cases. > > I share Marty's intuition that this > hypothetical is one where the > zero point would matter to them; a flagrantly > discriminatory tax would look > different from a flagrantly discriminatory refusal > to subsidize. The long > tradition of no tax and no subsidy no doubt affects > their intuition on > both questions. > > > > > Douglas Laycock > University of Texas Law School > 727 E. Dean Keeton St. > Austin, TX 78705 > 512-232-1341 (voice) > 512-471-6988 (fax) > [EMAIL PROTECTED] > > ___
RE: Tax On Theology Majors
Rick's discussion touches a point that I find particularly troubling about the Locke decision. Rick is correct that Joshua Davey could have kept the scholarship if he had double enrolled at two colleges and used the scholarship to pay for tuition at the college where he had not declared a theology major. But more troubling to me is the fact that Davey could have enrolled at the University of Washington, declared a theology major, and kept the scholarship. It seems downright weird that the State of Washington allegedly has a strong state interest in not giving equal funding to a handful of theology majors who otherwise qualify for its widely available Promise Scholarships, yet that strong interest in not assisting in clergy training fails to prevent the State of Washington from offering and funding the study of theology at its own universities. Perhaps this point goes to whether Washington State's proffered interest in not funding clergy training should have met the rational basis standard of review that the Court seemed to employ. Kim Colby -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Thursday, May 27, 2004 11:38 AM To: Law & Religion issues for Law Academics Subject: Re: Tax On Theology Majors Doug and Marty's intuitions are mine as well. I am just trying to figure out reasoning that decides Locke one way and the tax case the other. Another distinction emhasized by Locke and which forms part of its narrow holding is that in Locke the student could still keep the scholarship (in theory at least) by attending a second college and pursuing an acceptable major there. Thus, if Locke had attended both seminary and, say, U of W, he could have used his scholarship to attend the U while still pursuing his theology degree w/out penalty. In other words, theology majors are not denied a scholarship, they simply can not use it to pay for their pursuit of a theology major. In the hypo, that is not possible. The $1,000 tax would hit Locke merely for majoring in theology. Rick --- Douglas Laycock <[EMAIL PROTECTED]> wrote: > Rick Duncan wrote: > > >I think the point is that from an economic > >perspective, there is little or no difference > between > >a targeted $1,000 tax and a targeted exclusion from > a > >generally available $1,000 benefit. The Court has specifically made > >this point on many occasions including, I believe, in Sherbert. > > Sometimes they say this, and sometimes they > say the zero point > matters. Walz v. New York and Lemon v. Kurtzman are > only one year apart; a > tax exemption looked very different from a cash > subsidy. They also have a > strong intuition that no one is entitled to a cash > subsidy; it is not a > judicial function to order one. Rebuttable, but > perhaps only in speech > cases. > > I share Marty's intuition that this > hypothetical is one where the > zero point would matter to them; a flagrantly > discriminatory tax would look > different from a flagrantly discriminatory refusal > to subsidize. The long > tradition of no tax and no subsidy no doubt affects > their intuition on > both questions. > > > > > Douglas Laycock > University of Texas Law School > 727 E. Dean Keeton St. > Austin, TX 78705 > 512-232-1341 (voice) > 512-471-6988 (fax) > [EMAIL PROTECTED] > > ___ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get > password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
Doug and Marty's intuitions are mine as well. I am just trying to figure out reasoning that decides Locke one way and the tax case the other. Another distinction emhasized by Locke and which forms part of its narrow holding is that in Locke the student could still keep the scholarship (in theory at least) by attending a second college and pursuing an acceptable major there. Thus, if Locke had attended both seminary and, say, U of W, he could have used his scholarship to attend the U while still pursuing his theology degree w/out penalty. In other words, theology majors are not denied a scholarship, they simply can not use it to pay for their pursuit of a theology major. In the hypo, that is not possible. The $1,000 tax would hit Locke merely for majoring in theology. Rick --- Douglas Laycock <[EMAIL PROTECTED]> wrote: > Rick Duncan wrote: > > >I think the point is that from an economic > >perspective, there is little or no difference > between > >a targeted $1,000 tax and a targeted exclusion from > a > >generally available $1,000 benefit. The Court has > >specifically made this point on many occasions > >including, I believe, in Sherbert. > > Sometimes they say this, and sometimes they > say the zero point > matters. Walz v. New York and Lemon v. Kurtzman are > only one year apart; a > tax exemption looked very different from a cash > subsidy. They also have a > strong intuition that no one is entitled to a cash > subsidy; it is not a > judicial function to order one. Rebuttable, but > perhaps only in speech > cases. > > I share Marty's intuition that this > hypothetical is one where the > zero point would matter to them; a flagrantly > discriminatory tax would look > different from a flagrantly discriminatory refusal > to subsidize. The long > tradition of no tax and no subsidy no doubt affects > their intuition on > both questions. > > > > > Douglas Laycock > University of Texas Law School > 727 E. Dean Keeton St. > Austin, TX 78705 > 512-232-1341 (voice) > 512-471-6988 (fax) > [EMAIL PROTECTED] > > ___ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get > password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
Rick Duncan wrote: I think the point is that from an economic perspective, there is little or no difference between a targeted $1,000 tax and a targeted exclusion from a generally available $1,000 benefit. The Court has specifically made this point on many occasions including, I believe, in Sherbert. Sometimes they say this, and sometimes they say the zero point matters. Walz v. New York and Lemon v. Kurtzman are only one year apart; a tax exemption looked very different from a cash subsidy. They also have a strong intuition that no one is entitled to a cash subsidy; it is not a judicial function to order one. Rebuttable, but perhaps only in speech cases. I share Marty's intuition that this hypothetical is one where the zero point would matter to them; a flagrantly discriminatory tax would look different from a flagrantly discriminatory refusal to subsidize. The long tradition of no tax and no subsidy no doubt affects their intuition on both questions. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
--- Marty Lederman <[EMAIL PROTECTED]> wrote: > What would be the conceivable state interest in > imposing such a targeted tax? Assuming there is no > legitimate interest in singling out "theology from a > devotional perspective," the classification would > violate the Equal Protection Clause, and presumably > the Free Exercise Clause as well, per Lukumi. In addition to revenue as per my last post, another conceivable legitimate state interest is the same one advanced in Locke--the state wants to make sure that *no* tax funds go to the training of clergy. The legislature might decide that lots of state funds subsidize seminaries. For example, seminaries get the benefits of roads and infrastructure, of police and fire protection, etc. The $1,000 tax might be seen as a means of recapturing those subsidies and thus of ensuring that citizens of the state not be taxed to fund the training of clergy. Is this a legitimate interest? Why not? It is certainly true that religious seminaries do receive lots of benefits from general governmental services. Why is it illegitimate for a state to try to recapture some of those tax dollars and thus protect the consciences of citizens who do not wish to fund religion? Again, I think Locke is to Free Ex as Marsh v. Chambers is to the EC. A narrow exception based on the Court's understanding of historical tradition. This narrow exception requires the drawing of fine (perhaps irrational) lines to carve it out. Rick = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
If it is pure rational basis, I guess the legitimate interest might be in raising revenue. The law is generally very deferential toward classifications concerning tax policy, even toward classifications that appear irrational(just look at the IRC for an infinity of examples). I think the point is that from an economic perspective, there is little or no difference between a targeted $1,000 tax and a targeted exclusion from a generally available $1,000 benefit. The Court has specifically made this point on many occasions including, I believe, in Sherbert. If the latter is a trivial burden on Free Ex, so also is the former. I am sure the Court would strike down the targeted tax as a violation of the core of Smith, but it is difficult to square this result with Locke. Unless Locke is, as I think it is, a narrow decision carving out a special rule allowing states to exclude clergy-in-training from generally available funding programs. Rick = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Tax On Theology Majors
What would be the conceivable state interest in imposing such a targeted tax? Assuming there is no legitimate interest in singling out "theology from a devotional perspective," the classification would violate the Equal Protection Clause, and presumably the Free Exercise Clause as well, per Lukumi. - Original Message - From: "Rick Duncan" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> Sent: Thursday, May 27, 2004 10:07 AM Subject: Tax On Theology Majors > Suppose a state enacted a $1,000 per year tax on> students majoring in theology from a devotional> perspective. Would this violate Free Ex under Locke?> Would it be unlawful viewpoint discrimination under> the FSC?> > Rick> > => Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902> > "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle> > "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner> > > > > __> Do you Yahoo!?> Friends. Fun. Try the all-new Yahoo! Messenger.> http://messenger.yahoo.com/ > ___> To post, send message to [EMAIL PROTECTED]> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Tax On Theology Majors
Suppose a state enacted a $1,000 per year tax on students majoring in theology from a devotional perspective. Would this violate Free Ex under Locke? Would it be unlawful viewpoint discrimination under the FSC? Rick = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
