Friday, June 1, 2012
Martha M. Legg has written an interesting student note titled Excluding Parsonages from Taxation: Declaring a Victor in the Duel Between Caesar and the First Amendment, 10 Georgetown Journal of Law & Public Policy 269 (2012). Here is the introduction (footnotes omitted):
The Religion Clauses in the First Amendment famously state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The clauses are categorized as the Establishment Clause and the Free Exercise Clause, the former forbidding the government from establishing a state religion and the latter protecting the individual’s right to
freely practice her religion. In complying with these two clauses, the legislature is given “room for play in the joints” in structuring legitimate legislative policy. Rather than requiring absolute separation of church and state, the Religion Clauses “affirmatively mandate accommodation, not merely tolerance, of all religion, and forbid hostility toward any.” The Establishment Clause requires the government to act with a policy of benevolent neutrality toward religion, which has never been interpreted to mean “callous indifference to religious groups.”
This Note looks at the tax exclusions for parsonages, or church-provided housing for ministers. Until recently, the constitutionality of the parsonage exclusions remained off the courts’ radar. With a case on the matter recently dismissed for lack of standing and filed with new plaintiffs in a different district court, the continuing constitutionality of parsonage exclusions is one of the most significant concerns religious institutions face today and one which will likely be appealed to the Supreme Court in the coming terms. The parsonage exclusions fall squarely under Establishment Clause jurisprudence rather than under Free Exercise jurisprudence because they do not implicate a direct government burden on the personal exercise of religion. As such, reviewing courts will examine the parsonage exclusions’ constitutionality using the Supreme Court’s three-prong test laid out in Lemon v. Kurtzman. Ignoring questions of standing, equity, abuse, and the mortgage interest deduction, this Note focuses on the Establishment Clause implications for parsonage exclusions, ultimately concluding that the parsonage exclusions are constitutional when (necessarily) viewed as one element of a larger congressional plan to extend tax relief to recipients of employer-provided housing as a principal feature of their employment. Part I lays out the text of the parsonage exclusions. Part II examines the evolution of the parsonage exclusions, looking at both their origins and their history in America. Part III explores the qualifications and administrative requirements to receive the parsonage exclusions. Part IV unpacks the question of whether tax exclusions for religious institutions constitute subsidies of religion. Part V analyzes the constitutionality of the parsonage exclusions, ultimately concluding that they do not violate the Establishment Clause under the tests promulgated by the Supreme Court.