Dr. Warren, Section 107, and Texas Monthly: A Reply

Posted: 8 Jun 2002

See all articles by Edward A. Zelinsky

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Abstract

In this report, Professor Zelinsky responds to a critique of his earlier article on Warren v. Commissioner, a case in which a panel of the Ninth Circuit has sua sponte questioned the constitutionality of section 107(2) and its exclusion from gross income of parsonage allowances. In that earlier article, Professor Zelinsky argued that as a matter of positive law, the U.S. Supreme Court's decision in Texas Monthly, Inc. v. Bullock indicates that section 107 is an unconstitutional subsidization of religion. However, the Court's prior decision in Walz v. Tax Commission suggests that section 107 is constitutional as a permissible accommodation of religion that disentangles church and state.

Professor Zelinsky now responds to criticisms advanced by Professor Eric Rakowski. In particular, Professor Zelinsky argues that Texas Monthly does not definitively settle the constitutional status of tax deductions, exemptions, and exclusions for religious persons and institutions, nor does Texas Monthly foreclose normative debate about the proper application of the Free Exercise and Establishment Clauses in this area. Professor Zelinsky further maintains that there are sound reasons for preferring Walz over Texas Monthly and that Walz indicates that section 107(2) is constitutional.

Professor Zelinsky contends that Texas Monthly rests on an erroneous premise - that all tax deductions, exclusions and exemptions are subsidies. He further contends that history suggests that the founding generation viewed tax exemptions as a means of separating church and state and that the realistic choice today is an imperfect trade-off between the costs and benefits of taxing religious institutions and the costs and benefits of exempting them.

Suggested Citation

Zelinsky, Edward A., Dr. Warren, Section 107, and Texas Monthly: A Reply. Available at SSRN: https://ssrn.com/abstract=315402

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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