Analogous Secular Interests

Mon Apr 23 06:58:50 PDT 2012

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
vrkoven at world.std.com

On Thu, Apr 19, 2012 at 2:43 PM, Douglas Laycock <dlaycock at 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-bounces at lists.ucla.edu [mailto:
> religionlaw-bounces at lists.ucla.edu] *On Behalf Of *bob at 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.marty at 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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