Tuesday, March 20, 2012

Zelinsky on the Individual Mandate, the Parsonage Allowance, and the Religious Exemptions for FICA and Social Security

ZelThat's a mouthful of a headline.  Anyway, Ed Zelinsky (Cardozo) has just posted on SSRN his article Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes.  Here's the abstract:

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion from gross income of clerical housing allowances.

I ultimately find unpersuasive the indictment of Section 107 as constitutionally entangling. For the same reasons, I also conclude that the religious exemptions of the Social Security taxes and of the individual health mandate pass First Amendment muster. In the modern world, extensive contact between tax systems and religious institutions is unavoidable. Whether religious entities and actors are taxed or exempted, there are inevitable tensions between the contemporary state and sectarian institutions and their personnel. Whether religious entities and actors are taxed or exempted, there are no disentangling alternatives, just imperfect trade-offs between different forms of entanglement.

Thus, Section 107 and the exclusion from gross income it grants to clerical recipients of housing and parsonage allowances are constitutionally permitted, though not constitutionally required, responses to the problems of entanglement inherent in the relationship between modern government and religion. Similarly, the Code’s sectarian exemptions from the individual health care mandate and from the FICA and self-employment taxes are acceptable, though not obligatory, means under the First Amendment of managing the inevitable contacts and tensions between the contemporary state and the religious community.

However, as a matter of tax policy, the exclusion of Section 107(2) for cash parsonage allowances stands on weaker ground than does the exclusion of Section 107(1) for in-kind housing provided to “minister[s] of the gospel.” The taxation of such cash allowances, in contrast to the taxation of housing provided in-kind, does not involve problems of valuation or of taxpayer liquidity and is thus more practicable as a matter of tax policy.

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Comments

I like your balanced view. I think absent 107 clergy in a more traditional parsonage arrangement might qualify under 119 and that part of the motivation for 107 was to continue that treatment. Abuse of the parsonage allowance could be curtailed by putting in a dollar limit of cash in lieu. I think the purists on this issue tend to neglect to acknowledge the trade-off between establishment and free exercise in the 1st amendment.

Posted by: Peter Reilly | Mar 21, 2012 8:46:34 AM

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