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Dorocak: Constitutionality of the § 107 Housing Allowance for Pastors

John R. Dorocak (Western State) has published The Income Tax Exclusion of the Housing Allowance for Ministers of the Gospel Per I.R.C. § 107: First Amendment Establishment of Religion or Free Exercise Thereof — Where Should the Warren Court Have Gone?, 54 S.D. L. Rev. 233 (2009).  Here is the abstract:

Recent scholarship by liberal constitutional law professors has leaned toward changing the traditional interpretation of the Second Amendment's right to bear arms from a collectivist view to an individual view. A similar trend may emerge concerning the pre-eminence of the Free Exercise Clause over the Establishment Clause in the religion clauses of the First Amendment. As Justice Scalia indicated in his dissent in Texas Monthly, Inc. v. Bullock, the Free Exercise Clause likely comes close to requiring tax exemptions for religious activities and reasonable accommodation of such activities would not violate the Establishment Clause.

On the other hand, Professor Erwin Chemerinsky attempted to intervene in Warren v. Commissioner, a case involving an Orange County, California minister, to assert that the Establishment Clause would require that the parsonage exclusion be held unconstitutional. It seems the issue has been joined.


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