Friday, September 9, 2011

66 Experts to Aid the Commission on Accountability and Policy for Religious Organizations

We previously blogged about the creation of a Commission on Accountability and Policy for Religious Organzations by the Evangelical Council for Financial Accountability (ECFA) at the request of Senator Charles Grassley.  Now ECFA has announced that 66 nonprofit and religious organization experts have been named three panels to aid the Commission in its work.  The panels include a Panel on Religious Sector Representatives with members from a variety of faiths, a Panel of Nonprofit Sector Representatives from a variety of nonprofit associations and groups, and a Panel of Legal Experts with a variety of law firm practitioners, in-house counsel, and one academic (Professor Thomas Berg (University of St. Thomas, Minneapolis)).  I am personally aware that other academics were invited to join the last Panel but declined because of other commitments, which may explain the low level of academic involvement.


September 9, 2011 in In the News, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, August 8, 2011

Summer Court Update: 7th Circuit Applies Franchise Law to Girl Scouts; Pastor Housing Allowance Suit Dropped

There were two notable federal court developments recently.

In Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., the U.S. Court of Appeals for the Seventh Circuit concluded the Wisconsin Fair Dealership Law applied with equal force to nonprofit organizations as well as for-profit organizations.  Writing for a unanimous panel, Judge Posner rejected a First Amendment challenge to the application of the law and then stated, in concluding that the dissolution of the local chapter by the national Girl Scouts organization violated the law, the following: 

"No gulf separates the profit from the nonprofit sectors of the American economy. There are nonprofit hospitals and for-profit hospitals, nonprofit colleges and for-profit colleges, and, as we have just noted, nonprofit sellers of food and for-profit sellers of food. When profit and nonprofit entities compete, they are driven by competition to become similar to each other. The commercial activity of nonprofits has grown substantially in recent decades, fueled by an increasing focus on revenue maximizing by the boards of these organizations, and this growth has stimulated increased competition both among nonprofit enterprises and with for-profit ones."  He then reasoned: "Dealer protection laws are aimed at such abuses, though they also and perhaps predominantly reflect the political influence of local businessmen seeking advantages over franchisors likely to be located in other states. . . . . Either way the concerns that motivate the laws seem applicable to nonprofit enterprises that enter into dealership agreements as defined in the laws, and so, as in our previous opinion, we decline to read an exception for nonprofit enterprises into the Wisconsin law." (citations omitted)  For a detailed commentary on this decision, see this Charity Governance blog post by Jack Siegel.

As for the other case, the Evangelical Council for Financial Accountability reported that the Freedom from Religion Foundation and other plaintiffs had voluntarily agreed with the defendant federal and state government officials to dismiss (without prejudice) their lawsuit challenging the constitutionality under the Establishment Clause and the California Constitution of the ministerial housing allowance exemptions found in Internal Revenue Code section 107 and a parallel state tax provision.  The ECFA press release provided a link to the stipulation of dismissal.  We previously blogged about the case, and about the Supreme Court's recent decision in Arizona Christian School Tuition Organization v. Winn that we predicated likely would lead to dismissal of this case because the Court sharply limited standing to bring Establishment Clause challenges to tax provisions.  The Freedom from Religion Foundation has not yet updated its public listing of information regarding this lawsuit, however, so it is not clear if they will try to overcome this standing issue at some point in the future.


August 8, 2011 in Church and State, Federal – Judicial, In the News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, June 2, 2011

Huffpost: "Catholic Charities in Rockford Ending Foster Care, Adoptions Over Gay Rights"

There have been occasional scholarly calls to prohibit discrimination on the basis of sexual orientation as a condition for receiving federal tax benefits.  For example, Nicholas Mirkay (Widener) has written extensively on this topic (Losing Our Religion, 17 Wm. & Mary Bill Rts. J. 715 (2009); Is it 'Charitable' to Discriminate?, 2007 Wisc. L. Rev. 45), while Shannon Weeks McCormack (UC Davis) has written more generally about not subsidizing organizations that generate significant negative externalities, including by having exclusionary practices such as ones based on sexual orientation (Taking the Good With the Bad, 52 Ariz. L. Rev. 977 (2010)).  Whatever the merits of these arguments, there appears to be little political traction for such changes. 

What has gained political traction, however, is tying more direct government financial support to not discriminating on the basis of sexual orientation. The most recent example of such a condition is in Illinois, where the Huffington Post reports that Catholic Charities of Rockford, Illinois has stopped providing foster care services because a new state law would have required it, as a recipient of state money, to treat people in civil unions as it would treat married couples. The Rockford Diocese announced the decision at a press conference last week, noting that approximately 350 children would be immediately affected.  According to the Huffington Post article, if Catholic Charities statewide followed suit another entity would need to be identified to handle approximately 2,500 foster care cases annually.  For a helpful summary of similar decisions by Catholic Charities in other states and recent scholarship for and against religious exemptions in this context, see this Concurring Opinions post by Courtney Joslin (UC Davis).

Additional Coverage: Chicago Tribune.


June 2, 2011 in In the News, Religion, State – Legislative | Permalink | Comments (0) | TrackBack (0)

Monday, September 6, 2010

Religious Nondiscrimination Provision in Pending Federal Legislation Sparks Controversy

The New York Times reports that numerous religiously-affiliated organizations are protesting a religious nondiscrimination provision in pending legislation (H.R. 5466) to reauthorize the Substance Abuse and Mental Health Services Administration.  One provision (Sec. 1947) states that any block funds received under the legislation constitute "federal financial assistance" under certain Civil Rights laws and are subject to the following nondiscrimination requirement as to recipients of services:

(2)   Prohibition. No person shall on the ground of sex (including, in the case of a woman, on the ground that the woman is pregnant), or on the ground of religion, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity funded in whole or in part with funds made available under section 1911 or 1921 [of the legislation].

In effect, recipients of federal funding under this legislation must provide social services free of any religious bias or restriction.

The more controversial provision of the pending legislation deals with religious preference in hiring (H.R. 5466, section 2(a), amending Title V, Part A, section 501 (m)(2)), which provides:

(2) CONSIDERATION OF RELIGION IN EMPLOYMENT DECISIONS- With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved, as the case may be, may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, education institution, or society.

This particular provision would trump the exemption provided to religious organizations under Title VI of the Civil Rights Act of 1964 that permits them to discriminate on the basis of religion in employment.  As reported in the New York Times article, both Christian and Jewish organizations alike are concerned about the impact of the pending legislation on their ability to hire and administer their missions consistent with their faiths and beliefs.  In contrast, the Coalition Against Religious Discrimination (including the ACLU, Hindu American Foundation, and NAACP) support such restrictions and desire that Congress eliminate federal funding of faith-based providers all together.

The debate over religious nondiscrimination in federal funding of social service programs administered by religiously-affiliated nonprofits is anything but new.  Both Presidents Clinton and Bush supported such federally financed programs provided they were administered on a religiously-neutral basis.  However, until this legislation, there was no attempt to impose religious nondiscrimination in hiring on faith-based providers as a prerequisite to federal funding.

(Hat tip:  Jack Siegel at Charity Governance Consulting, LLC)


September 6, 2010 in Church and State, Federal – Legislative, Religion | Permalink | Comments (2) | TrackBack (0)

Monday, July 26, 2010

Professor Fish Addresses Christian Legal Society v. Martinez -- Again

In a post on today's Opinionator (the Online Commentary from the New York Times), Professor Stanley Fish returns to a discussion of Christian Legal Society v. Martinez, 561 U.S. ____ (2010), in which the Supreme Court upheld Hastings Law School's right to withhold official recognition from a Christian group that restricted its membership to co-believers who not only talked the talk but walked the walk as far as Christianity was concerned.  Professor Fish addressed the issue in his post last week, arguing that "[u]nder cover of 'neutrality,' Hastings, with the [Supreme Court] majority’s approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community."

This week, he states in part:

Lurking in the background of . . . cases [like C.L.S. v. Martinez] is the question of exactly what a religion is. The courts do not confront that question directly — how could they? what would be their expertise? — but when even-handed treatment becomes the rule in aid and burdens on free exercise must be tolerated if imposing them was not the law’s affirmative intention, an answer has implicitly been given: religion is just another discourse, no different than any other. That is to say, religion is not special; it is not special in the negative sense implied by the establishment clause, which by its very existence announces, “watch out, this stuff is trouble”; and it is not special in the positive sense declared by the free exercise clause, which seems to announce, “this is something the state must protect.” The evisceration of the establishment clause gets religion in the door but at the expense of its unique status; the neutering or “neutraling” of the free exercise clause completes the denial to religion of the label “special.”

In the final analysis, Professor Fish presents what he sees as the current dilemma:

Religious organizations face a choice between altering their core beliefs or forfeiting privileges enjoyed by others. The liberal state and its institutions face a choice between being faithful to the democratic principle of open access or closing the liberal door to those who are illiberal. 

He continues:

The dilemma is sharpened and even rendered poignant by the fact that liberalism very much wants to believe that it is being fair to religion, but what it calls fairness amounts to cutting religion down to liberal size. That is what the majority in Christian Legal Society v. Martinez does when it invokes the limited forum doctrine, which, according to a line of cases, should have protected C.L.S.’s expressive rights of association, but does not because expressive association is declared to be trumped by the value of non-discrimination.

Professor Fish's pieces on the case make interesting reading.  I highly recommend them.


July 26, 2010 in Church and State, Current Affairs, In the News, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, July 9, 2010

Church or Fraudulent Scam?

In a recent MSNBC story, the validity of the Syro Russian Orthodox Catholic Church as a "church" is under scrutiny.  Questions are being raised about the true religious nature of the church, whether the self-proclaimed religious priests and archbishop were ever ordained, and the validity of diplomas being awarded by its affiliated university (formerly, the Notre Dame de Lafayette University of Colorado, whose assets were subsequently transferred to the Mercian Orthodox Catholic Church).  A police detective in Duluth, Minnesota spent over a year investigating the church and its seminary then located in Minnesota (now in Ohio), documenting more than $40,000 in fraud alleged by five students.  He presented his documented evidence to the Minnesota attorney general, the FBI, and the local prosecutor, all of which were reluctant to take on the case because it involved a church.

The article discusses the relatively non-evasive nature of income tax exemption law with respect to entities claiming to be bona fide churches, making it an area of potential abuse, as discussed by our fellow blogger and academic, Lloyd Mayer.  In fact, it appears that the IRS did grant exempt status to this organization as a church.  The article also reveals the slippery slope that law enforcement encounters when dealing with an entity claiming to be a church.  At a minimum, it provides a fascinating case study and teaching opportunity for any nonprofit law professor.


July 9, 2010 in Federal – Executive, In the News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, July 8, 2010

Are Income Tax Preferences for Clergy Constitutional?

Michael L. Gompertz, a retired IRS attorney, has published Lawsuit Challenges Income Tax Preferences for Clergy in the July 5th edition of Tax Notes.  Tax Notes' synopsis follows:

In this article, the author argues that sections 107 and 265(a)(6)(B) are unconstitutional because they are narrow tax preferences for clergy that violate the First Amendment's establishment clause.  Taxpayers have standing to challenge these sections.  In Freedom From Religion Foundation v. Geithner, a district court correctly denied the government's motion to dismiss taxpayers' claims that section 107 is unconstitutional, but incorrectly granted the motion to dismiss claims that section 265(a)(6)(B) is unconstitutional.

We previously blogged about the significance of the Freedom From Religion Foundation v. Geithner case.


July 8, 2010 in Federal – Judicial, Publications – Articles, Religion | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 7, 2010

Supreme Court: Universities Can Regulate Funded Groups' Membership

As reported by The Chronicle of Philanthropy, The U.S. Supreme Court's decision in Hastings Christian Fellowship v. Martinez handed down last week addressed the constitutionality of a public educational institution conditioning access to a school-funded student organization based on compliance with an "all-comers" policy.  Like most colleges and universities, the Hastings College of Law at the University of California required all student organizations to obtain official recognition before they can receive the institution's support for their activities.  Hastings referred to such an organization as a "Registered Student Organization" (RSO).  An RSO provides a student group with several benefits, including the use of school funds, facilities, and channels of communication, as well as the school's name and logo.  In exchange, any RSO must comply with the school's Nondiscrimination Policy, which mirrors California state law barring discrimination on a number of bases, including religion and sexual orientation.  Hastings interprets this policy to mandate acceptance of all comers; namely, an RSO must permit any student to participate, become a member or seek leadership in the organization, regardless of that student's status or beliefs.  Hasting's Nondiscrimination Policy was problematic for the Christian Legal Society, which mandates that its members sign a "statement of faith" adhering to the Society's theological views, including, as the Supreme Court noted, the belief that "sexual activity should not occur outside of marriage between a man and a woman."   When seeking status as an RSO, the Society also requested an exemption from the school's nondiscrimination policy, alleging that such policy would violate its First Amendment right to freedom of association by forcing it to include members who do not share its fundamental views.  Hastings refused to grant the exemption, leading to the lawsuit.

Writing for the 5-justice majority, Justice Ginsburg explained that the Hastings case was not simply about "expressive association" under the First Amendment, on which the Court ruled in Boys Scouts of America v. Dale (upholding the Boy Scouts right to refuse membership to a gay assistant scoutmaster). Rather, the Court held that this case was governed by the "limited public forum" doctrine, which permits colleges, universities and other institutions that receive government funds to restrict First Amendment rights provided they have a valid reason.  As to Hastings, the Court found that it had valid reasons, including the encouragement of "tolerance, cooperation, and learning among students."  In response to the Society's contention that the school's nondiscrimination policy discriminated against its tenets, the Court noted that the Hastings policy affected all student groups; specifically, that a Republican student organization must admit avowed Democrats, and likewise.  Accordingly, the Court concluded that the Hastings policy draws no distinction between groups based on their message or perspective; its requirement that all student groups accept all comers is "textbook viewpoint neutral."


July 7, 2010 in Current Affairs, Federal – Judicial, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 6, 2010

Present-Day Public Policy Doctrine: Should Charitable Donations Continue to Fund West Bank Settlements?

The New York Times reports that during the last 10 years a minimum of 40 U.S.-based charities have remitted more than $200 million in tax-deductible contributions to Jewish settlements in the West Bank and East Jerusalem.  Although a majority of the contributions have been funneled to schools, synagogues, and other public centers, some contributions have funded housing developments, guard dogs, bulletproof vests and other commodities needed to secure the settlements.  At a minimum, the latter funding is in direct conflict with a succession of United States policy, continued by the Obama administration, opposing the settlements.  Specifically, the United States consistently restricts Israel from using American government aid in the settlements.  Although the IRS has announced that it is working on a publication to address domestic nonprofits and international activities, including consideration of additional questions on Schedule F of the Form 990, it has not announced any concentrated effort to address such charitable contributions made in direct conflict with United States foreign policy.

As discussed in a previous article on, the primary issue raised in using charitable contributions to support West Bank settlements is the public policy doctrine announced by the U.S. Supreme Court in Bob Jones University: an institution seeking tax-exempt status "must serve a public purpose and not be contrary to established public policy."  Of course, what constitutes "established public policy" is subject to much conjecture by legal scholars.  In Bob Jones University, the Supreme Court found that racial discrimination in education violated a fundamental national public policy rooted in judicial decisions, legislation (Civil Rights Act), and executive orders.  Does the U.S. policy on West Bank settlements meet that same threshold?  Or, is the succession of past administrations' policy opposing West Bank settlements sufficient?  Even if violation of established public policy is found, as Professor Ellen Aprill stated in the article, the IRS would be "loath" to revoke the exemption of the domestic charities that have violated such policy.  Regardless of IRS action or inaction, the continued domestic charity support of the West Bank settlements arguably poses a present-day test of the public policy doctrine.


July 6, 2010 in Current Affairs, Federal – Executive, Religion | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 19, 2010

Play Space Owner Defends Self Against Claims of Having Religious Agenda

Tuesday's Washington Post carried an interesting story:

Gina Seebachan owns the Be With Me Playseum, an indoor play space in Bethesda, Maryland.  The Playseum has recently become mired in controversy.  According to the Post,

In anonymous postings on local Web sites, parents [have] accused Seebachan of handing out antiabortion literature at the Playseum, accepting support from right-wing Christian groups and playing Christian rock music at the play space. Most damning, one anonymous poster who said she was Jewish claimed that Seebachan told her that unless she accepted Jesus as her personal savior, the client and her children would go to hell.

Seebachan, her friends and neighbors take a different view.  They speak of "an unsubstantiated whisper campaign that had gone viral, with Web postings accusing Seebachan, an evangelical Christian, and the Playseum of being less about creating a play space for children and more about saving their souls."

According to Seebachan, the current uproar stems from her references to God and her use of the word "life" on the Playseum Website.  She dismisses the accusations against her and the Playseum as "vicious" lies.  Still, at least one elementary school recently canceled a field trip to the Playseum because of the alleged religious nature of the play space. 



    May 19, 2010 in Religion | Permalink | Comments (0) | TrackBack (0)

    Monday, March 8, 2010

    Controversy in Boulder

    On Thursday, Colorado TV station 9News broke the story that the Sacred Heart of Jesus School, a Roman Catholic school in Boulder, would not allow a student to return next year because his parents are a lesbian couple.  The story has since taken off and developed a life of its own.  I thought I would survey some of the reaction to the school's decision.

    As an initial matter, the Roman Catholic Archdiocese of Denver (which has ultimate authority over the school's policies and decisions), defended the decision, saying, according to Catholic News Agency, that “Parents living in open discord with Catholic teaching in areas of faith and morals unfortunately choose by their actions to disqualify their children from enrollment.” 

    I found some interesting comments on, a Website that describes itself as "A site with homosexual tendencies."  Maybe the most interesting comment I found there was the one that questioned whether the Church would now refrain from enrolling children of parents who are divorced, remarried, or using contraceptives.   

    I found strong support for the school's decision on a website called Les Femmes -- The Truth: Looking at Life from a Catholic Point of View.  There, "Mary Ann" writes:

    So a big public thank-you to Archbishop Charles Chaput and the administrators of Sacred Heart. Spend a minute to say a prayer for all involved in the decision and send the Archdiocese of Denver a big thank-you for upholding Catholic truth.

    I believe the controversy highlights one of several current conflicts in law and religion -- or maybe society and religion.  We would all agree that the school has not broken the law.  I'll go one step further and say that as a minister of religion myself and as the former Religious Liberty Director of the New York Conference of Seventh-day Adventists, I believe the Sacred Heart of Jesus School and the Archdiocese of Denver have every right to formulate and implement school policy in keeping with the tenets and teachings of the Roman Catholic Church.  Yet, how do we reconcile this right with our desire to promote and live in a society free of discrimination?  How do we reconcile our view that Sacred Heart of Jesus School is right to stand on Church teachings and refuse to re-admit the student with the Supreme Court's decision in Bob Jones University v. United States, 461 U.S. 574 (1983)?

    We may argue that because sexual orientation is not a "protected class," no public policy arguments could be made to strip the Roman Catholic Church -- or any church, for that matter -- from its Tax-exempt status for denying school admission to children of gay and lesbian parents or -- to make the argument I found on -- children whose parents are divorced, remarried, or who use contraceptives.  But what if, ten or twenty years in the future, sexual orientation were to become a protected class; would churches who stand on what they see as religious principles lose their tax- exempt status?

    I'm sorting through this issue in a chapter of my new book (Current Conflicts in Law and Religion).  I'd welcome your comments and feedback, either on the Blog or at my e-mail --  Thanks. 


    March 8, 2010 in Church and State, Current Affairs, In the News, Religion | Permalink | Comments (0) | TrackBack (0)

    Religious Violence Kills 200 in Nigeria is reporting that at least 200 people, most of them Christians, were killed in religious violence in three mostly Christian villages in Nigeria on Sunday.  According to, Red Cross spokesman Robin Waubo stated that the violence appeared to be reprisal attacks following the January unrest in Jos, Nigeria, when 300 people, most of them Muslims, were killed.


    March 8, 2010 in Current Affairs, In the News, International, Religion | Permalink | Comments (1) | TrackBack (0)

    Wednesday, January 20, 2010

    U.K. -- Ban Imposed on Muslim Group

    A report in the New York Times indicates that Britain has outlawed a radical Islamic group that had incited outrage by planning a protest march through the streets of a town made famous for its somber ceremonies honoring British soldiers killed in Afghanistan.  Alan Johnson, the British home secretary, said the move criminalizing membership in the banned group, Islam4UK, was a “tough but necessary power to tackle terrorism.”  The ban, which took effect on January 14, also outlawed other names used by the organization.  Islam4UK decried Britain’s action in a statement posted to its website, saying that the prohibition of the group was “a clear case of the oppressor and tyrant blaming the oppressed.”  The organization has described itself as a platform for promoting the views of an extremist Islamic group, Al Muhajiroun, which praised the hijackers of the Sept. 11, 2001, attacks in the United States as heroes, but disbanded in 2005 in response to a British government order banning it.  Islam4UK says it has never advocated or been involved with violence.  The ban was announced one day after a court found five British Muslim men guilty of harassment and using insulting language during a protest they had staged at a separate parade welcoming British troops home from Afghanistan. The men had shouted slogans describing the soldiers as “murderers,” “rapists” and “baby killers.”




    January 20, 2010 in International, Religion | Permalink | Comments (0) | TrackBack (0)

    Friday, November 27, 2009

    DC – Catholic Church Threatens to Pull Social Services Over Gay Rights

    The Washington Post reports that the Catholic Church is threatening to end a wide range of service programs in the District of Columbia pending the passage of a same-sex marriage bill by the DC Council next month.  The bill has language that requires, among other things, prohibiting discrimination against gay men and women by religious organizations. 

    A spokeswoman for the church stated that "the city is saying in order to provide social services, you need to be secular. For us, that's really a problem."  The church says that it will be forced to abandon its contracts with the city including those that provide social services to the community.  Specifically, the church points to the $10 million it contributes to city social services to illustrate the impact of the bill.  The DC government has responded that the church is not “an indispensable component of [the city’s] social services infrastructure.”  Peter Rosenstein of the Campaign for All D.C. Families states that “the issue here is that they are using public funds, and to allow people to discriminate with public money is unacceptable.” 

    The DC Council is expected to pass the bill next month.  Council members state that they are baffled by the church’s position, but that they are willing to find another partner to provide social services who will be able to make use of the $8.2 million in city contracts that currently goes to the church.


    November 27, 2009 in Church and State, Current Affairs, Religion | Permalink | Comments (0) | TrackBack (0)

    Thursday, November 19, 2009

    Feed the Children Founder Files Suit Challenging Firing by Board

    We previously blogged about the governance dispute at Feed the Children, a Christian ministry that is among the ten largest recipients of charitable contributions (over $1.1 billion in 2008) according to the Chronicle of Philanthropy.  While that dispute appeared to have been close to resolution last spring, recent public developments reveal that it has only moved into a new phase.  According to local news reports in Oklahoma City, where Feed the Children is headquartered, the organization's Board of Directors fired President and founder Larry Jones on November 6th.  The firing may have been triggered by Jones' alleged placement of microphones in the offices of several board members, although apparently the recording system connected to those microphones was never operational.  Jones has responded by filing a lawsuit against the charity and its board demanding reinstatement.  The Oklahoman is providing ongoing coverage of the dispute and related developments through a dedicated webpage.


    November 19, 2009 in In the News, Religion, State – Judicial | Permalink | Comments (0) | TrackBack (0)

    Lawsuit Challenging Minister Rental Allowance Could Foreshadow Broader Assault on Religious Nonprofit Benefits

    Last month the Freedom from Religion Foundation and several of its members filed a lawsuit in federal district court in California against Treasury Secretary Geithner, IRS Commissioner Shulman, and California Franchise Tax Board Executive Officer Stanislaus challenging the exclusion from income provided for the value of parsonages and rental allowances provided to a "minister of the gospel" under Internal Revenue Code section 107.  While normally such suits would have a taxpayer standing problem - i.e., the long-standing federal court holding that merely being a taxpayer provides insufficient grounds for standing to challenge a tax benefit provided to another taxpayer - the U.S. Court of Appeals for the Ninth Circuit has indicated a willingness to depart from that holding when the Establishment Clause is at issue (see Winn v. Arizona Christian School Tuition Organization (slip. op. pages 4596-4602), rehearing en banc denied).  The attorney representing the Foundation is the well-known atheist Michael Newdow, who previously challenged the constitutionality of "under God" in the Pledge of Allegiance used in public schools.

    The lawsuit is significant not only because of the plausible threat it provides to Code section 107, which is of significant financial value to religious leaders and their congregations, but also because if it overcomes the standing issue it may open the door to challenges to the many other tax and non-tax legal benefits provided only to religious bodies.  While many and perhaps most of those benefits are defensible on avoiding entanglement grounds, it is far from clear that all of them could be so defended. 


    November 19, 2009 in Federal – Judicial, Religion | Permalink | Comments (0) | TrackBack (0)

    Sunday, November 15, 2009

    New York Times Discusses Acceptance of Pagans

    Because the federal census does not ask about religious affiliation, and because ridicule or discrimination has tended to keep Pagans closeted in the past, statistics on the number of adherents in the United States are imprecise and probably too low, according to an article in the New York Times.  Still, the recent growth in their numbers is evident in surveys done in 1990 and 2001 by the City University of New York.  And the acceptance of the religion by the military and others has increased in recent years.  In the 1970s, Wiccan groups began seeking and obtaining tax-exempt status from federal and state authorities, said the Rev. Selena Fox, the founder and spiritual leader of an early, influential Wicca church, Circle Sanctuary in Barneveld, Wis.  By the decade’s end, Wicca was included in the handbook for military chaplains.  Since then, Wiccans have served as chaplains in prisons and hospices, as well as in the armed forces.  Recently, Ms. Fox supplied the invocation for the daily session of the Wisconsin State Assembly.

    November 15, 2009 in Religion | Permalink | Comments (0) | TrackBack (0)

    Monday, October 26, 2009

    Reactions Continue to Pour in on Pope's Invitation to Traditional Anglicans

    Last week, the Vatican made a proposal to Anglicans unhappy about their church's moves toward accepting female and gay bishops: reunite with the Roman Catholic Church.

    In a surprise announcement from Rome last Tuesday, Pope Benedict XVI approved a provision to create a new church entity that will allow Anglicans to join the Catholic Church in a format similar to Ukrainian or Eastern Rite Catholics, keeping their liturgy and married priests, but not married bishops.

    According to USA Today, the announcement stunned many in the 77-million worldwide Anglican Communion, particularly the Church of England, where the Archbishop of Canterbury has wrestled for years with factions that oppose female bishops.

    Meanwhile, several church officials and commentators have been weighing in on the Pope's announcement.  One Anglican group, known as the Traditional Anglican Communion, opposes female bishops and has made public its bid to join the Catholic Church. The fellowship, which split from the Archbishop of Canterbury in 1990, says it has spread to 41 countries and has 400,000 members.  In a similar vein, the Rev. Kendall Harmon, canon theologian for the Episcopal Diocese of South Carolina, sees the Vatican's announcement as a global event, "maybe one of Benedict's biggest moves."   

    "Rome is trying to find a structural solution to an unbearable pastoral problem," Harmon said in a statement reacting to the Pope's invitation.   According to him, Vatican leaders "clearly feel that if they don't intervene now, it will get worse. Their motive is the reunification of Christianity. If Anglicanism wasn't going to provide a catholic solution, the worldwide church would fracture even more."

    Still, Harmon does not expect to see any "snap moves" — particularly because most traditionalist bishops in the USA are married.

    Across the border in Canada, some Anglicans have rebuffed the Pope's invitation.  Canadian Anglican parishes dissatisfied with their church's new approach to female bishops and gays have broken away from the Anglican Church and formed the Anglican Network in Canada.  According to the Network's website, the group "embrace[s] Anglican orthodoxy — the biblically faithful, authentically Anglican way of following Jesus … defined by and centered on the … foundational principles of the Anglican tradition in Canada."  No evidence exists that the breakaway parishes will now reunite with the Catholic Church.  In fact, CBC News reported on Thursday that Kevin Flynn, director of Anglican studies at Saint Paul University in Ottawa, said he does not think Rome's offer will change much between Anglicans and the Catholic Church. Flynn also thinks the Pope's attempts to woo disaffected Anglicans might alienate some Catholics who want to see their church adopt more liberal views.

    "For those Roman Catholics, … I'd say, 'Well, come and be an Anglican.' "

    In an op-ed published in Saturday's New York Times, British commentator A. N. Wilson opined that the Pope's overture is actually good news for Britain:

    It will formally bring to an end the idea of the Established Church, and of the monarch as that Establishment’s symbol and head. Whatever our private religious allegiances, we Britons no longer want to force our royal heads of state to jump through those impossible hoops. The paradox is that a move by a conservative pope to ease the tender consciences of conservative-minded Anglicans will actually be a move toward the complete secularization of Britain, and an acceptance of its new multicultural identity.

    In yesterday's Times, Ross Douthat took a different approach.  According to Douthat, the Pope's invitation "represents an unusual effort at targeted proselytism, remarkable both for its concessions to potential converts — married priests, a self-contained institutional structure, an Anglican rite — and for its indifference to the wishes of the Church of England’s leadership."

    He continues: 

    This is not the way well-mannered modern churches are supposed to behave.  Spurred by the optimism of the early 1960s, the major denominations of Western Christendom have spent half a century being exquisitely polite to one another, setting aside a history of strife in the name of greater Christian unity.

    This ecumenical era has borne real theological fruit, especially on issues that divided Catholics and Protestants during the Reformation. But what began as a daring experiment has decayed into bureaucratized complacency — a dull round of interdenominational statements on global warming and Third World debt, only tenuously connected to the Gospel.

    At the same time, the more ecumenically minded denominations have lost believers to more assertive faiths — Pentecostalism, Evangelicalism, Mormonism and even Islam — or seen them drift into agnosticism and apathy.

    Nobody is more aware of this erosion than Benedict. So the pope is going back to basics — touting the particular witness of Catholicism even when he’s addressing universal subjects, and seeking converts more than common ground.

    Along the way, he’s courting both ends of the theological spectrum. In his encyclicals, Benedict has addressed a range of issues — social justice, environmental protection, even erotic love — that are close to the hearts of secular liberals and lukewarm, progressive-minded Christians. But instead of stopping at a place of broad agreement, he has pushed further, trying to persuade his more liberal readers that many of their beliefs actually depend on the West’s Catholic heritage, and make sense only when grounded in a serious religious faith.

    At the same time, the pope has systematically lowered the barriers for conservative Christians hovering on the threshold of the church, unsure whether to slip inside. This was the purpose behind his controversial outreach to schismatic Latin Mass Catholics, and it explains the current opening to Anglicans.

    Douthat then makes an interesting comment: making the opening to Anglicanism, Benedict also may have a deeper conflict in mind — not the parochial Western struggle between conservative and liberal believers, but Christianity’s global encounter with a resurgent Islam.

    Here Catholicism and Anglicanism share two fronts. In Europe, both are weakened players, caught between a secular majority and an expanding Muslim population. In Africa, increasingly the real heart of the Anglican Communion, both are facing an entrenched Islamic presence across a fault line running from Nigeria to Sudan.

    Hence, Douthat concludes, what is being interpreted, for now, "as an intra-Christian skirmish may eventually be remembered as the first step toward a united Anglican-Catholic front — not against liberalism or atheism, but against Christianity’s most enduring and impressive foe."

    The debate will no doubt continue for a while.  We shall keep you posted as warranted.


    October 26, 2009 in Current Affairs, International, Religion | Permalink | Comments (0) | TrackBack (0)

    Friday, August 21, 2009

    Evangelical Lutheran Church in America Loosens Gay Clergy Policy

    Earlier this week, we blogged that the Evangelical Lutheran Church in America ("ELCA") was set to discuss the issue of gays and lesbians in committed relationships serving as members of the clergy.  Reuters is reporting that the church has indeed taken steps to allow gays and lesbians to serve in ministry. The Reuters report states in part:

    The Evangelical Lutheran Church in America also encouraged its congregations to find ways to support or recognize members in "accountable lifelong, monogamous, same-gender relationships."

    But it did not give official sanction to gay marriage or approve any rites for such ceremonies.

    The report continues:

    The resolution, approved by a vote of 559 to 441, said the church was committed to finding ways to allow people in "accountable, lifelong, monogamous, same-gender relationships to serve as rostered leaders of this church."

    The measure applies to clergy as well as professional lay leaders.

    The assembly still has to approve procedural changes to allow the resolution to go forward. [John] Brooks[, the director of the Evangelical Lutheran Church in America's news service and a spokesman for the church,] said he expected the new policy to be in place by 2010.


    August 21, 2009 in In the News, Religion | Permalink | Comments (0) | TrackBack (0)

    Thursday, August 20, 2009

    Judge Rules U.S. Seizure of Charity's Assets Unlawful

    According to a report published in today's Toledo Blade, a federal judge in Toledo, Ohio, on Tuesday  ruled that the U.S. government violated the constitutional rights of a Muslim charity when it froze the charity's assets in 2005 and prevented it from adequately defending itself against allegations of ties to terrorism.  

    Judge James Carr (Northern District of Ohio) released a 100-page order late Tuesday in KindHearts for Charitable Development, Inc. v. Geithner in which he agreed with the charity's assertions that it had been denied due process and was subjected to the unlawful seizure of its property. According to the Blade, KindHearts, founded in 2002, was targeted in 2006 by federal agents, who in turn froze the charity's financial assets.  Court documents revealed that "the organization was under investigation by the Office of Foreign Assets Control of the U.S. Treasury De-partment and would potentially be labeled as a 'specially designated global terrorist.'" 

    Earlier this year, Judge Carr ordered the government to produce copies of all materials seized in 2006 from KindHearts' headquarters and the home of its president.

    The organization's attorneys had argued that without access to the information, it could not defend itself against charges of terrorism by showing where its money was spent. The government countered that opening access could compromise its investigation.

    The organization's attorneys also argued that the government violated search-and-seizure laws when it froze KindHearts' assets without showing probable cause and without obtaining a warrant.

    In the order released on Tuesday, Judge Carr wrote:

    KindHearts is indisputably one of 'the people' protected by the Fourth Amendment. If the Constitution affords KindHearts no protection from unreasonable searches and seizures, whom among 'the people' does it protect and who among the people can be certain of its protection?

    Judge Carr also noted that finding the Fourth Amendment inapplicable to the government's "block actions" would disregard its "role as a bulwark against the abuses and excesses of unchecked governmental power." 

    In responding to the ruling, Charles Miller, a spokesman for the U.S. Department of Justice Civil Division said that his office will analyze the lengthy opinion so that it is wholly understood.  He declined further comment.

    Of course, the government can appeal the decision to the Sixth Circuit.  The Blade reports that "At a May 1 court appearance before the judge in which both sides argued their cases, the government indicated if the judge ruled the freeze of assets lifted, it would request a stay until the appellate court hears the case."

    Time will tell what happens next.


    August 20, 2009 in Church and State, In the News, Religion | Permalink | Comments (0) | TrackBack (0)