Unemployment tax & religious organization

[Eugene Volokh]

Pat Schiltz writes:

> The flip side of this, of course, is that if the statute exempted insurance
> brokers and golf caddies (among others), but did not exempt religious
> workers, the statute would not be "generally applicable," it would burden
> religion (but cf. Swaggart), and it would not further a compelling state
> interest (at least arguably).

    Well, I'd certainly be troubled by a law that exempts many groups
-- including, for instance, all or most secular nonprofit groups --
but taxes similar religious groups.  That would be discrimination
against religion, and would raise Lukumi-like problems.  But if
that's so, then it seems to me that a law that exempts religious
groups but taxes the great majority of similar secular nonprofit
groups is discriminating in favor of religion.  And such
discrimination, in either direction, seems to me quite troublesome,
and not just in the speech context (cf. Texas Monthly v. Bullock).

    The solution, I think, is the sort of statute upheld in Walz --
one that treats religious groups quite similarly with other similarly
situated groups.  Of course, this raises the question of along what
axis the groups need to be "similarly situated."  One such axis is
the groups being nonprofit public-service institutions, but I'm
willing to consider other axes, e.g., groups with rapid employee
turnover, or some such.  It's just that in this case I see no axis
along which all groups similar to the favored religious ones are
covered.


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