Analogous Secular Interests

Mon Apr 23 07:41:08 PDT 2012

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-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at 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
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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