Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, May 1, 2018

The Costs of Invalidating the Housing-Allowance Exclusion

In Gaylor v. Mnuchin, the Seventh Circuit is reviewing a district judge's ruling that the Establishment Clause invalidates section 107(2) of the IRS Code, the provision that allows ministers/clergy (of all faiths) to exclude an employer-provided housing allowance from income for federal tax purposes. (Section 107(1), which allows exclusion of the value of an employer-provided parsonage, is not challenged.)  Becket, which represents clergy intervening in the case to defend the provision, has a case page on its website. A brief summary of the argument on the merits in Becket's opening brief (at 6):

Section 107(2) takes the longstanding convenience-of-the-employer doctrine, which [excludes employer-provided housing from income if the employee--religious or secular--uses it for the employer's convenience], and applies it to ministers in a way that reduces entanglement and discrimination. [From TB: It reduces entanglement in the sense that otherwise the IRS would have to make religiously sensitive inquiries inquire into what constitutes meaningful use of the minister's home for the church. And it reduces discrimination in the sense that limiting the exclusion only to church-provided parsonage favors those churches that are old, established, or wealthy enough to have an existing parsonage or be able to make a down payment on a new one.]

Several amicus briefs filed support the government and the clergy-intervenors. Our Religious Liberty Appellate Clinic at St. Thomas helped draft a brief laying out the serious consequences for ministers and churches if 107(2) is invalidated. Using a variety of national surveys, we document these conclusions (from our summary of argument, pp. 3-4):

      A. Housing allowances excludable under § 107(2) are deeply embedded in our national life—that is, widely used in ministerial compensation structures. [Citing the "deeply embedded" standard from the Court's approval of tax exemptions in the Walz case.] Figures in studies indicate that anywhere from 61 to 81 percent of congregations rely on housing allowances (as opposed to church-owned parsonages) to give their ministers housing benefits.

      B. Invalidating § 107(2) would significantly disrupt the activities of ministers and congregations that have relied on the provision. The effects are evident in simple hypothetical examples involving a congregation of around the median-size budget, which is a modest $85,000. Solo ministers in that range receiving the median base salary—a modest $35,000—and a median housing allowance could see their federal tax liability nearly triple. To keep their ministers or preserve their financial stability, congregations would have to offset the added tax liability, including increased state income taxes. And the added compensation to accomplish that offset must significantly exceed the added taxes, since the new compensation is itself subject to federal and state income tax and federal self-employment tax. Calculating these effects in a simple hypothetical for a median-sized congregation shows how disruptive the invalidation of § 107(2) would be for congregations that have little cushion to absorb the effects.

We also present evidence that invalidating 107(2) "would disproportionately harm smaller congregations and those that must rely on a housing allowance as a means of structuring clergy compensation," and that it "would especially retired ministers and those nearing retirement."

St. Thomas 3L student Kacie Phillips (about to graduate!) did outstanding work on the review of studies and on the initial drafting of the brief.

May 1, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Tuesday, March 20, 2018

"Religious Freedom and the Common Good": Symposium at St. Thomas Law, March 23

Reposting this. Twin Cities and upper-Midwest readers, please come join us!

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together two groups--(1) social scientists who study the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizers are the Baylor University Institute for Study of Religion (ISR); St. Thomas's Murphy Institute for Catholic Thought, Law, and Public Policy (co-directed by our own Lisa Schiltz); and the Religious Freedom Institute.

Here is the conference description, with times and titles of various presentations. A little more about the speakers:

  • Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
  • Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
  • Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
  • Jackie Rivers, an expert on the social role and contributions of African-American churches
  • Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
  • Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
  • Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
  • Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
  • Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
  • Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
  • Yours truly

A description in text: 

     Challenges to religious freedom have become more prominent and intense in recent years, both in the US and abroad. The conflicts involve both individuals and nonprofit religious organizations, of varying faiths, and laws on matters from nondiscrimination to healthcare to national security. Arguments over these questions typically treat religious freedom as a matter of personal individual autonomy. But religious freedom may have another important dimension: the common good. Indeed, in an era of increasing skepticism toward many religious-freedom claims, the defense of religious freedom may increasingly rely on showing that it preserves space for religious groups to benefit individuals and society.

     Social scientists have done considerable research on the asserted contributions of religion and religious organizations for individual believers, for recipients of social services, and for society. But what are these contributions, and how well established are they? Moreover, what relationship do they have to religious freedom in the American tradition? Can religious freedom be justified in part based on its contributions to the common good, and how would such arguments affect the scope of religious freedom?
 
     To address these questions, this conference brings leading social scientists together with a variety of legal scholars, advocates, and policy experts. Among the topics will be the contributions of religious organizations to social services, the founders' views of religion's societal effects, the benefits and risks of religious freedom for African-Americans, the role of religious freedom in countering terrorism, a view of religious-freedom issues from within government service, and the causes and consequences of religious-freedom restrictions in various nations.
 
     Conference papers will be published in the University of St. Thomas Law Journal and, in shorter form, in other venues.

March 20, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, February 21, 2018

"Religious Freedom and the Common Good" Symposium: March 23 at St. Thomas Law

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together (1) social scientists who measure the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizer is the Baylor University Institute for Study of Religion (ISR).

So far just a Facebook link, so I'll post at a bit of length. Speakers include:

  • Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
  • Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
  • Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
  • Jackie Rivers, an expert on the social role and contributions of African-American churches
  • Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
  • Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
  • Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
  • Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
  • Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
  • Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
  • Yours truly

Here's a fuller description: 

Continue reading

February 21, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

"The Question of Religious Freedom" (Loyola)

For readers in and about Chicago: The theology department at Loyola U. is sponsoring a program on "The Question of Religious Freedom," on Monday, March 12 (evening keynote), and Tuesday, March 13 (day-long) at the downtown campus. Speakers include Barry Hudock, author of Struggle, Condemnation, Vindication: John Courtney Murray’s Journey toward Vatican II; Robin Lovin, one of the nation's most distinguished mainline Protestant social ethicists; and three legal scholars, Kathleen Brady, Leslie Griffin, and yours truly. 

From the description:

In recent times, religious freedom has reemerged as a key and controversial issue within the United States and around the world.  With a desire to contribute to this essential conversation, we have invited prominent scholars to discuss and analyze religious freedom as it relates to issues of social polarization, peaceful coexistence, non-discrimination and the common good. We also will look back to the contribution of John Courtney Murray, S.J. to Dignitatis Humanae, the groundbreaking document on Religious Freedom issued in [1965] by the Second Vatican Council. 

I'm looking forward to the program: an examination of Murray's legacy on this issue, a wide-ranging set of current perspectives, an important set of themes ("social polarization" et al. above), and ample time allocated for the speakers and audience to air and explore those themes thoroughly.

February 21, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Sunday, November 13, 2016

"Religious Freedom and the Common Good"

That's the title of a symposium this Tuesday, November 15, organized by the Religious Freedom Project (RFP) of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. A number of social scientists will present their work on the relation of religious freedom to the domestic and international common good. As a legal scholar, I will join the opening panel and present some suggestions on how these findings might relate to legal doctrine, and how doctrinal questions in turn might suggest further research emphases.

Here's a bit of the symposium description:

 Our symposium will explore the following: To what extent is religious liberty critical for human flourishing? When and how does it contribute to economic prosperity, democratization, and peace? What challenges face religious communities living under repressive governments or hostile social forces? How is the persecution of religion related to other infringements of basic human rights? What is the relationship between religious freedom and violent religious extremism, and is there a role for religious freedom in efforts to undermine radicalization and counter violent religious extremism and terrorism over the long term?

Any readers who are inside or near the Beltway--this should be a really interesting and enlightening day of presentations.

November 13, 2016 in Berg, Thomas, Religion | Permalink

Wednesday, October 12, 2016

"Christ is Our Model" ... Plus This Other Thing Too

Protestant fundamentalist anti-Catholicism ain't what it used to be; it's far less prominent in the Protestant vision today. But you sometimes run across current versions, and I just ran across a passage that made me laugh out loud. It's a criticism of a younger evangelical speaker/blogger, Jen Hatmaker, and the supposed theological dangers she poses. One such danger, the critic says, is that Hatmaker has called Pope Francis one of her heroes and

also has a quote from Mother Teresa prominently displayed on the opening page of her personal website. The quote itself is not wrong, but it is not wise to point other Christian women to any Catholic leader as an example of Christ-likeness. Christ is our head, He is our model. [That's true.--TB] To say nothing of the fact that the Roman Catholic church is an apostate counterfeit of the true Church.

I love the writer winding up that paragraph by just tossing in the last sentence.

Actually the post then raises a worthwhile reminder on a separate issue: how people can get smug when they reduce Christian faith to doing good works, i.e. "works-righteousness piety." But I digress.

October 12, 2016 in Berg, Thomas, Religion | Permalink

Wednesday, September 28, 2016

How Do Religion's Societal Contributions Support Religious Freedom?

The Berkley Center at Georgetown is a leader in supporting and publicizing the growing body of empirical research that catalogs and quantifies the contributions religious organizations make to society: serving those in need, employing workers, mobilizing volunteers and donors, etc. On the Berkley Center blog, I have a piece exploring how these findings are relevant to religious freedom for these organizations. It starts off:

       A new study by the Religious Freedom and Business Foundation quantifies the socio-economic value that religious organizations contribute to America: nearly $1.2 trillion yearly in economic activity and in services to others. The analysis reinforces evidence previously amassed by scholars like Ram Cnaan, John DiIulio, Steven Monsma, and Robert Putnam and David Campbell.

       Such evidence is relevant to the questions about religious freedom that currently vex American society—in particular, the rights of religious organizations, both churches and nonprofits, to adhere to their religious tenets and identity in hiring employees and serving clients. Countering the one-sided view that freedom of religion is simply a cover for irrationality and bigotry will open minds to considering religious freedom arguments rather than dismissing them out of hand.

       More specifically, this argument that religion benefits society reflects an important strain in America’s religious freedom tradition. One reason we protect voluntary religious organizations is that they are important means by which individuals develop and exercise “civic virtue.” ...

I go on to address some important challenges to the idea that religious organizations' societal contributions are a ground for protecting their religious freedom--for example, "If religious organizations are so important and pervasive, doesn’t society have to regulate them heavily to limit their harms to others?"

In an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make. This piece is a brief exercise in refining the arguments. (I have longer versions of my thoughts here, at pp. 113-26, and here, at pp. 307-18.) 

September 28, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Monday, August 29, 2016

"Public Faith: A Christian Voice for the Common Good"

Some thoughtful and committed folks, mostly younger evangelicals, have announced this venture and issued a vision statement responding to our current situation, which they describe as follows:

In the midst of another divisive election and a political culture that thrives off of conflict, many Christians and other Americans are tempted to check out and claim the posture of a conscientious objector or to dig in for even greater political hostilities. We believe that neither political withdrawal nor reinvigorated culture wars by Christians will help our nation and communities through the difficult challenges we face.

The headings in the statement include (A) "Pluralism and 21st-Century Religious Freedom"; (B) "Poverty, Stewardship, and Caring for the Most Vulnerable"; and (C) "Strengthening Families and Reducing Abortion."

Check it out.

August 29, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Thursday, August 25, 2016

"What Became of the Christian Intellectuals?"

Today, while in Boston visiting potential colleges with our son, we toured the JFK Presidential Museum. It's fascinating set of exhibits with artifacts, news footage, audio interviews, letters, etc.--well worth an afternoon when you're in town. One artifact was a marked-up invitation list for a 1962 White House state dinner honoring Andre Malraux, then France's Minister of Cultural Affairs. Here's the first page of the list:

JFK Museum - Dinner Invite List

They would have been decent table company, no? (I'll take the list as an official White House recognition that Murray and Niebuhr, as I've argued, should go together--even if the Niebuhrs for whatever reason were crossed off this dinner.)

So I came back to our B&B thinking about the decline in public prominence of Christian intellectuals in America since 1962, and a friend pointed me to Alan Jacobs' new essay in Harper's--subtitled "What Became of the Christian Intellectuals?" Unsurprisingly with Jacobs, it's a great read. Here's a taste of his explanation (which, in full, touches on the careers of, among others, T.S. Eliot, Maritain, Niebuhr, Auden, Richard Neuhaus, Cornel West, and Marilynne Robinson): 

It was the Sixties that changed everything, and not primarily because of the Vietnam War or the cause of civil rights. There were many Christians on both sides of those divides. The primary conflict was over the sexual revolution and the changes in the American legal system that accompanied it: changes in divorce law, for instance, but especially in abortion law. (Many Christians supported and continue to support abortion rights, of course; but abortion is rarely if ever the central, faith-defining issue for them that it often is for those in the pro-life camp.) By the time these changes happened and Christian intellectuals found themselves suddenly outside the circles of power, no longer at the head table of liberalism, Christians had built up sufficient institutional stability and financial resourcefulness to be able to create their own subaltern counterpublics. And this temptation proved irresistible. As Marilynne Robinson has rightly said in reflecting on the agitation she can create by calling herself a Christian, “This is a gauge of the degree to which the right has colonized the word and also of the degree to which the center and left have capitulated, have surrendered the word and also the identity.” 

As they say, read the whole thing.

August 25, 2016 in Berg, Thomas, Religion | Permalink

Friday, May 20, 2016

Methodists Withdraw from Religious Pro-Abortion-Rights Group

This is quite a striking vote, cutting against the trend in which mainline Protestant denominations over the years became  increasingly allied, if only in their policy offices, with the broadest versions of the right to abort.

     Evangelicals celebrated the United Methodist Church’s decision yesterday to leave a pro-choice advocacy group it co-founded 43 years before. 

     At its general conference, delegates voted 425-268 to withdraw from the Religious Coalition for Reproductive Choice (RCRC), an interfaith organization whose broad support extends to late-term and sex-selective abortions—a practice that the church’s social principles “unconditionally reject.”

This is one more data point in the emerging pattern that the ideological middle of the country--which Methodists tend to track--will not accept hard-line pro-abortion-rights positions, even as it increasingly accepts the progressive position on the other major culture war issue of gay rights. The two are very different, and their paths in public opinion charts will increasingly diverge.

May 20, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink