by Alec Soghomonian*

Reli­gious favoritism rears its head in many dif­fer­ent forms. While some instances can be blunt and obvi­ous, more sub­tle and incon­spic­u­ous vari­a­tions play a large role in the abro­ga­tion of the sep­a­ra­tion between church and state. One such sub­tle form of reli­gious favoritism can be found in the Unit­ed States Tax Code.  The par­son­age exemp­tion is part of a broad­er statu­to­ry scheme in the Inter­nal Rev­enue Code known as the con­ve­nience of the employ­er doc­trine.1 The con­ve­nience of the employ­er doc­trine excludes “hous­ing pro­vid­ed to employ­ees for the con­ve­nience of their employ­er” from the income of employ­ees.2 The mod­ern cod­i­fi­ca­tion of the con­ve­nience of the employ­er doc­trine is 26 U.S.C. § 119(a)(2), which exempts meals and lodg­ings pro­vid­ed to employ­ees who meet the fol­low­ing cri­te­ria: “the meal or lodg­ing is fur­nished (1) by an employ­er to an employ­ee, (2) in kind (as opposed to in cash), (3) on the busi­ness premis­es of the employ­er, (4) for the con­ve­nience of the employ­er, and (5) as a con­di­tion of employ­ment.”3

Sec­tion 119 is a gen­er­al, broad­ly applic­a­ble statute: so long as an employ­ee can meet the five pre-con­di­tions set out in the reg­u­la­tion, they will be enti­tled to the tax deduc­tion. Impor­tant­ly, as the reg­u­la­tion notes, only those employ­ees who are pro­vid­ed hous­ing in kind, not those who are pro­vid­ed cash allowances for hous­ing, are allowed to claim the deduc­tion.4 How­ev­er, this lim­i­ta­tion does not apply to “min­is­ters of the gospel” and the reli­gious insti­tu­tions that employ them. Indeed, 26 U.S.C. § 107(2) explic­it­ly allows for min­is­ters of the gospel—and only min­is­ters of the gospel—to deduct “the rental allowance paid to him as part of his com­pen­sa­tion, to the extent used by him to rent or pro­vide a home.”5 This patent favoritism of reli­gion over non-reli­gion vio­lates the Estab­lish­ment Clause of the First Amendment.

* * * * *

Under­stand­ing the his­to­ry and con­text of the Par­son­age Exemp­tion is nec­es­sary to under­stand the con­sti­tu­tion­al argu­ments made both in its favor and dis­fa­vor. Pri­or to the enact­ment of the Par­son­age Exemp­tion, the Trea­sury Depart­ment only applied the con­ve­nience of the employ­er doc­trine to sec­u­lar employ­ees and, in 1921, pro­mul­gat­ed a rule that it did not apply to min­is­ters.6 Con­gress react­ed to the Treasury’s deci­sion by pass­ing the Rev­enue Act of 1921, which pro­vid­ed for the exclu­sion of “the rental val­ue of a dwelling house and appur­te­nances there­of fur­nished to a min­is­ter of the gospel as part of his com­pen­sa­tion.”7 Sec­tion 213(b)(11) was the pre­cur­sor to sec­tion 107(1), which mere­ly extends the same in-kind hous­ing deduc­tions that are avail­able to non-reli­gious, sec­u­lar employ­ees to min­is­ters of the gospel.

In 1954, Con­gress enact­ed § 107(2), which extend­ed the cash hous­ing deduc­tion ben­e­fit sole­ly to reli­gious orga­ni­za­tions and their employ­ees.8 Although con­sti­tu­tion­al­ly sus­pect from the start, the Par­son­age Exemp­tion remained unchal­lenged until 2002. In War­ren v. Com­mis­sion­er of Inter­nal Rev­enue,9 a case regard­ing the tax­es owed by a min­is­ter, the Ninth Cir­cuit ques­tioned the con­sti­tu­tion­al­i­ty of the Par­son­age Exemp­tion at oral argu­ment and sub­se­quent­ly request­ed brief­ing on the mat­ter.10 How­ev­er, Con­gress quick­ly passed the Cler­gy Hous­ing Allowance Clar­i­fi­ca­tion Act of 200211 with the express pur­pose of ren­der­ing the War­ren case moot and sav­ing min­is­ters of the gospel from incur­ring the steep tax lia­bil­i­ty.12 Accord­ing to the Con­gres­sion­al record, had the Ninth Cir­cuit ruled that the Par­son­age Exemp­tion was uncon­sti­tu­tion­al, min­is­ters of the gospel “would be faced with a tax increase . . . of rough­ly 2.3 bil­lion [dol­lars] in the next few years.”13

Although the Ninth Cir­cuit failed to reach the mer­its on the Par­son­age Exemption’s con­sti­tu­tion­al­i­ty, the Sev­enth Cir­cuit upheld the pro­vi­sion in Gay­lor v. Mnuchin.14 Despite this, the Par­son­age Exemption’s con­sti­tu­tion­al­ly remains unclear and is ripe for legal chal­lenge in oth­er fed­er­al cir­cuits. The Par­son­age Exemp­tion should be held uncon­sti­tu­tion­al for three rea­sons, each one of which is suf­fi­cient on its own.

First, the Par­son­age Exemp­tion vio­lates the Supreme Court’s reli­gious tax cas­es, name­ly Walz v. Tax Com­mis­sion of City of New York15 and Texas Month­ly, Inc. v. Bul­lock.16 Walz involved a New York City tax exemp­tion that applied to a wide range of reli­gious prop­er­ties, but also sec­u­lar insti­tu­tions such as hos­pi­tals, non-prof­its, and libraries.17 The Supreme Court held that this wide­ly applic­a­ble tax exemp­tion was con­sti­tu­tion­al because of its broad applic­a­bil­i­ty.18 It did not favor reli­gion, but rather, incor­po­rat­ed reli­gious orga­ni­za­tions into a tax exemp­tion scheme that applied to sim­i­lar­ly sit­u­at­ed sec­u­lar orga­ni­za­tions. The tax exemp­tion in Texas Month­ly, how­ev­er, did not extend to sim­i­lar­ly sit­u­at­ed sec­u­lar pub­li­ca­tions. Texas had passed a tax exemp­tion that applied sole­ly to reli­gious mag­a­zine pub­li­ca­tions.19 The Court held that the appli­ca­tion of the exemp­tion sole­ly to reli­gious pub­li­ca­tions vio­lat­ed the Estab­lish­ment Clause.20 Indeed, Jus­tice Brennan’s plu­ral­i­ty opin­ion explic­it­ly stat­ed that as long as a tax ben­e­fit “is con­ferred upon a wide array of non­sec­tar­i­an groups as well as reli­gious orga­ni­za­tions,” the tax scheme is in com­pli­ance with the com­mands of the Estab­lish­ment Clause.21

The rule from Walz and Texas Month­ly is clear: tax exemp­tions that do not apply to both reli­gious orga­ni­za­tions and sim­i­lar­ly sit­u­at­ed non-reli­gious enti­ties vio­late the Estab­lish­ment Clause. The Par­son­age Exemp­tion vio­lates this fun­da­men­tal rule. It is a tax exemp­tion that applies to min­is­ters of the gospel and only to min­is­ters of the gospel. Its fail­ure to extend to sim­i­lar­ly sit­u­at­ed, non-reli­gious orga­ni­za­tions and employ­ees is a bla­tant vio­la­tion of clear Estab­lish­ment Clause jurisprudence.

The Gay­lor court rea­soned that because the Par­son­age Exemp­tion was part of a broad­er statu­to­ry scheme, it was more anal­o­gous to the prop­er­ty tax exemp­tion in Walz than the reli­gious pub­li­ca­tion exemp­tion in Texas Month­ly.22 The Court cit­ed the doc­trine of in pari mate­ria, which requires courts to inter­pret sim­i­lar statutes in light of each oth­er because they have a com­mon pur­pose for com­pa­ra­ble events or items.23

How­ev­er, the Gay­lor court’s rea­son­ing miss­es the mark for two rea­sons. First, it fun­da­men­tal­ly mis­reads Walz. The prop­er­ty tax exemp­tion in Walz was broad­ly applic­a­ble in and of itself. The Par­son­age Exemp­tion, in stark con­trast, applies only to min­is­ters of the gospel, not to sim­i­lar­ly sit­u­at­ed non-reli­gious employ­ees. The ques­tion is not whether the broad­er statu­to­ry scheme is con­sti­tu­tion­al, but rather whether a spe­cif­ic tax pro­vi­sion with­in a broad­er scheme is con­sti­tu­tion­al. Sec­ond, in pari mate­ria is a doc­trine about statu­to­ry inter­pre­ta­tion, i.e., what the words of a statute mean, and has no par­tic­u­lar rel­e­vance to deter­min­ing whether or not a spe­cif­ic statu­to­ry pro­vi­sion is con­sti­tu­tion­al. Imbu­ing the Par­son­age Exemp­tion with a gloss of legal­i­ty through the broad­er statu­to­ry scheme does not address whether or not the Par­son­age Exemp­tion in and of itself is constitutional.

* * * * *

More­over, the Par­son­age Exemp­tion fails to sat­is­fy the require­ments of the test set forth in Lemon v. Kurtz­man24 (here­inafter the “Lemon test”). In its land­mark deci­sion, the Lemon court announced a tri­par­tite test to deter­mine whether a statute is con­sti­tu­tion­al under the Estab­lish­ment Clause. Under the Lemon test, the gov­ern­men­tal author­i­ty has the bur­den of show­ing that the statute “[1] ha[s] a sec­u­lar leg­isla­tive pur­pose; [2] its prin­ci­pal or pri­ma­ry effect must be one that nei­ther advances nor inhibits reli­gion; [3] final­ly, the statute must not fos­ter an exces­sive gov­ern­ment entan­gle­ment with reli­gion.“25 Because the pri­ma­ry effect of the Par­son­age Exemp­tion is the advance­ment of reli­gion, it is unconstitutional.

The first prong of the Lemon test requires that the gov­ern­ment action have a “sec­u­lar leg­isla­tive pur­pose.”26 The Supreme Court has long stat­ed that laws are pre­sumed to have a sec­u­lar leg­isla­tive pur­pose, and it is up to chal­lengers to show that the government’s prof­fered pur­pose is “a sham.”27 This is admit­ted­ly a heavy bur­den for legal chal­lengers, because gov­ern­ment offi­cials typ­i­cal­ly do not announce their unlaw­ful motives for enact­ing a law. How­ev­er, the use of leg­isla­tive his­to­ry has been used by chal­lengers to show the non-sec­u­lar pur­pos­es behind a law.28 In Edwards v. Aguil­lard, for instance, there was clear and unequiv­o­cal evi­dence in the leg­isla­tive record that a Louisiana edu­ca­tion law that banned evo­lu­tion in school was moti­vat­ed by non-sec­u­lar pur­pos­es.29 The leg­isla­tive his­to­ry of the Par­son­age Exemp­tion high­lights its reli­gious moti­va­tion. Enact­ed dur­ing the ear­ly days of the Cold War, the legislation’s spon­sor, Rep­re­sen­ta­tive Peter Mack stated:

Cer­tain­ly, in these times when we are being threat­ened by a god­less and anti-reli­gious world move­ment we should cor­rect this dis­crim­i­na­tion against cer­tain min­is­ters of the gospel who are car­ry­ing on such a coura­geous fight against this foe. Cer­tain­ly this is not too much to do for these peo­ple who are car­ing for our spir­i­tu­al wel­fare.30

How­ev­er, courts are still like­ly to side with the gov­ern­ment on the first prong for three rea­sons. First, Supreme Court prece­dent has made it clear that in order to have a non-sec­u­lar pur­pose, the law must be “whol­ly” devoid of any reli­gious moti­va­tion.31 This allows the gov­ern­ment to pass laws that coin­ci­den­tal­ly make it eas­i­er for reli­gious insti­tu­tions to act as reli­gious insti­tu­tions, so long as the pri­ma­ry moti­va­tion behind the law’s enact­ment is not the unlaw­ful ben­e­fit of reli­gion.32 Sec­ond, the fed­er­al judi­cia­ry has grown increas­ing­ly wary about the use of leg­isla­tive his­to­ry, at least in the statu­to­ry inter­pre­ta­tion con­text.33 More­over, giv­en the pre­sump­tion of legal­i­ty, courts will often defer to the government’s artic­u­lat­ed rea­son, espe­cial­ly when the leg­isla­tive record is thin.34

Chal­lengers will have a bet­ter chance of win­ning on the sec­ond prong of the Lemon test, which states that the law’s pri­ma­ry effect “must be one that nei­ther advances nor inhibits reli­gion.”35 The Par­son­age Exemp­tion, which allows reli­gious orga­ni­za­tions to save bil­lions of dol­lars in tax rev­enue and allows them to pay their employ­ees less than a sim­i­lar­ly sit­u­at­ed sec­u­lar enti­ty,36 clear­ly vio­lates the sec­ond prong of Lemon. The Par­son­age Exemption’s unique tax break pro­vid­ed sole­ly to min­is­ters of the gospel does not sim­ply make it eas­i­er for reli­gious orga­ni­za­tions to act as reli­gious orga­ni­za­tions, but rather active­ly pro­vides church­es with large finan­cial and eco­nom­ic ben­e­fits that are not avail­able to non-reli­gious enti­ties.37

The gov­ern­ment may defend the Par­son­age Exemp­tion by cit­ing Cor­po­ra­tion of Pre­sid­ing Bish­op of Church of Jesus Christ of Lat­ter-Day Saints v. Amos,38 for the propo­si­tion that the exemp­tion is a nec­es­sary accom­mo­da­tion for reli­gious belief because, with­out it, reli­gious exer­cise would be sti­fled. How­ev­er, this read­ing of the Amos opin­ion is too broad. The Court in Amos was right­ful­ly con­cerned about the free exer­cise con­cerns that would arise if reli­gious orga­ni­za­tions were held civil­ly liable for vio­lat­ing Title VII of the Civ­il Rights Act.39 Indeed, had the Court decid­ed dif­fer­ent­ly, many reli­gious groups, like the Roman Catholic Church would be forced to hire women priests, which goes against their core reli­gious beliefs.

But no free exer­cise con­cerns would be gen­er­at­ed if reli­gious orga­ni­za­tions’ min­is­ters of the gospel were treat­ed equal­ly to sim­i­lar­ly sit­u­at­ed sec­u­lar orga­ni­za­tions and their employ­ees. Instead, the Par­son­age Exemp­tion unabashed­ly fos­ters reli­gious belief. Reli­gious orga­ni­za­tions are able to save bil­lions of dol­lars that would typ­i­cal­ly be taxed by the gov­ern­ment.40 These cost sav­ing mech­a­nisms allow reli­gious orga­ni­za­tions to pay their employ­ees less than non-reli­gious enti­ties, because sec­u­lar employ­ees need to make up for the lost income with high­er salaries. By avoid­ing these costs, the Par­son­age Exemp­tion pri­ma­ry effect is the advance­ment of reli­gion, thus vio­lat­ing the sec­ond prong of the Lemon test.

Last­ly, the Lemon test requires there be only min­i­mal entan­gle­ment between the gov­ern­ment and reli­gion.41 Entan­gle­ment is a ques­tion of both “kind and degree”: the Con­sti­tu­tion does not pro­hib­it all entan­gle­ment between gov­ern­ment and reli­gion, only exces­sive entan­gle­ment.42 Impor­tant­ly, exces­sive entan­gle­ment occurs when the gov­ern­ment looks deeply into a reli­gious organization’s affairs.43 The Par­son­age Exemp­tion does cre­ate some entan­gle­ment between gov­ern­ment and reli­gion. It requires the Inter­nal Rev­enue Ser­vice (“IRS”) and review­ing courts to deter­mine whether a giv­en reli­gious employ­ee is a “min­is­ter of the gospel.” This high­ly fact-inten­sive inquiry includes deter­min­ing, amongst oth­er things, what the indi­vid­ual was hired to do and the actu­al work they per­formed.44 Indeed, the gov­ern­ment hav­ing to look deeply into an organization’s reli­gious affairs, like deter­min­ing which employ­ee qual­i­fies as a min­is­ter of the gospel and which one does not, is the very con­cern that trou­bled the Supreme Court in Lemon.45

How­ev­er, recent Supreme Court prece­dent makes it like­ly that courts will find that the Par­son­age Exemp­tion does not lead to exces­sive entan­gle­ment. Hosan­na-Tabor Evan­gel­i­cal Luther­an Church and School v. EEOC46 was a case regard­ing the min­is­te­r­i­al excep­tion in the employ­ment con­text. Although osten­si­bly not a tax­a­tion-relat­ed deci­sion, the fact-inten­sive inquiry the Supreme Court con­duct­ed in Hosan­na-Tabor looked to the same fac­tors the IRS and courts use to deter­mine whether an indi­vid­ual qual­i­fies as a min­is­ter of the gospel.47 Due to this tac­it approval of a sim­i­lar inquiry, it is like­ly that the Par­son­age Exemp­tion sat­is­fies the Lemon test’s third prong. But Lemon is an ele­ment test, and since the Par­son­age Exemption’s pri­ma­ry effect is the advance­ment of reli­gious belief in vio­la­tion of the Lemon test’s sec­ond prong, the pro­vi­sion is unconstitutional.

* * * * *

The Lemon test has been heav­i­ly crit­i­cized by the Supreme Court in large part due to its per­ceived ani­mus towards reli­gious belief.48 Due to this per­ceived ani­mus, the Supreme Court has cre­at­ed a new Estab­lish­ment Clause test known as the “His­tor­i­cal Prac­tices Test.” Applied most­ly in Reli­gious Sym­bol­ism cas­es, the His­tor­i­cal Prac­tices Test is a two-part inquiry. First, a Court asks whether the prac­tice “was accept­ed by the Framers and has with­stood the crit­i­cal scruti­ny of time and polit­i­cal change.“49 Next, the Court must deter­mine whether the prac­tice pro­motes an inde­pen­dent sec­u­lar val­ue.50 For instance, when uphold­ing the sec­tar­i­an leg­isla­tive prayer at issue in Town of Greece, the Court not­ed that leg­isla­tive prayer “invites law­mak­ers to reflect upon shared ideals and com­mon ends before they embark on the frac­tious busi­ness of gov­ern­ing.”51

Although the His­tor­i­cal Prac­tices jurispru­dence is lim­it­ed, the Par­son­age Exemp­tion can­not sur­vive its scruti­ny. As a thresh­old mat­ter, it is not entire­ly clear whether the Par­son­age Exemp­tion should be sub­ject­ed to the His­tor­i­cal Prac­tices Test, since the con­cerns many jus­tices have about the use of Lemon in the reli­gious sym­bol con­text sim­ply do not apply in a case con­cern­ing tax­a­tion exemp­tions.52 How­ev­er, even if the His­tor­i­cal Prac­tices Test were to apply, the Par­son­age Exemp­tion fails to meet the test’s sec­ond require­ment of pro­mot­ing an inde­pen­dent sec­u­lar val­ue, since its prin­ci­pal ben­e­fit and pur­pose is the advance­ment of reli­gious belief. A tax exemp­tion that applies sole­ly to min­is­ters of the gospel and not to any oth­er mem­bers of the sec­u­lar, non-reli­gious work­ing force does not pro­mote or fos­ter an inde­pen­dent sec­u­lar value.

* * * * *

The Par­son­age Exemp­tion is a rel­a­tive­ly unknown pro­vi­sion of the Unit­ed States Tax Code. How­ev­er, it brings to light impor­tant con­sti­tu­tion­al ques­tions that must be addressed by the courts. The ero­sion of the First Amendment’s Estab­lish­ment Clause and the vital safe­guards it pro­tects neces­si­tate chal­leng­ing the con­sti­tu­tion­al­i­ty of the Par­son­age Exemp­tion. Whether as a mat­ter of prece­dent, the Lemon test, or the His­tor­i­cal Prac­tices Test, the Par­son­age Exemp­tion should be deemed uncon­sti­tu­tion­al. Any­thing less risks abro­gat­ing a fun­da­men­tal con­sti­tu­tion­al pro­vi­sion that upholds our nation’s guar­an­tee of a reli­gious­ly neu­tral government.

*Alec Soghomon­ian is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the prob­lem pre­sent­ed at the 2021 Touro Law & Reli­gion Moot Court Com­pe­ti­tion at Touro School of Law. The ques­tion pre­sent­ed asked whether the Par­son­age Exemp­tion, 26 U.S.C. § 107(2), vio­lates the Estab­lish­ment Clause of the First Amend­ment. This Con­tri­bu­tion presents a dis­til­la­tion of the oppos­ing side of the argu­ment argued by the author at the com­pe­ti­tion and reflects his under­stand­ing and belief on this point of law.

1. See gen­er­al­ly 26 U.S.C. § 119(a).

2. Gay­lor v. Mnuchin, 919 F.3d 420, 423 (7th Cir. 2019).

3. Gay­lor, 919 F.3d at 428 (empha­sis added).

4. Id.

5. 26 U.S.C. § 107(2).

6. Gay­lor, 919 F.3d at 424.

7. Pub. L. No. 98, § 213(b)(11), 42 Stat. 227, 239.

8. Inter­nal Rev­enue Code of 1954, Pub. L. No. 83–1987, 68A Stat. 32.

9. 114 T.C. 343 (2000).

10. Erwin Chemerin­sky, The Par­son­age Exemp­tion Vio­lates the Estab­lish­ment Clause and Should be Declared Uncon­sti­tu­tion­al, 24 Whit­ti­er L. Rev. 707, 707–08 (2003).

11. Pub. L. No. 107–181, §2(b)(2), 116 Stat. 583 (2002).

12. 148 Cong. Rec. H1301 (dai­ly ed. Apr. 16, 2002).

13. Id. at H1301.

14. Gay­lor, 919 F.3d at 436–37.

15. 397 U.S. 664 (1970).

16. 489 U.S. 1 (1989) (plu­ral­i­ty opinion).

17. Walz, 397 U.S. at 673.

18. Id. at 675–76.

19. Texas Month­ly, 489 U.S. at 16 (plu­ral­i­ty opinion).

20. Id. at 5.

21. Id. at 14.

22. Gay­lor, 919 F.3d at 429.

23. See Antonin Scalia & Bryan A. Gar­ner, Read­ing Law 252 (2012) (“Sev­er­al acts in pari mate­ria, and relat­ing to the same sub­ject, are to be tak­en togeth­er, and com­pared in con­struc­tion of them, because they are con­sid­ered as hav­ing one object in view, and as act­ing upon one sys­tem.” (quot­ing 1 James Kent, Com­men­taries on Amer­i­can Law 433 (1826))).

24. 403 U.S. 602 (1971).

25. Id. at 612–13.

26. Id. at 612.

27. Edwards v. Aguil­lard, 482 U.S. 578, 586–87 (1987).

28. Id. at 595.

29. Id. at 593.

30. Forty Top­ics Per­tain­ing to the Gen­er­al Revi­sion of the Inter­nal Rev­enue Code: Hear­ings before H.R Comm. on Ways and Means, 83d. Cong. 1576 (1953) (state­ment of Hon. Peter F. Mack, Jr.).

31. Lynch v. Don­nel­ly, 465 U.S. 668, 680 (1987); see also Corp. of Pre­sid­ing Bish­op of Church of Jesus Christ of Lat­ter-Day Saints v. Amos, 483 U.S. 327, 330 (1987) (reject­ing the argu­ment that in order for a law to com­ply with the Estab­lish­ment Clause it must be com­plete­ly unre­lat­ed to religion).

32. Amos, 483 U.S. at 337 (stat­ing that “[f]or a law to have for­bid­den ‘effects’ under Lemon, it must be fair to say that the gov­ern­ment itself has advanced reli­gion through its own activ­i­ties and influence.”).

33. See CPSC v. GTE Syl­va­nia, Inc., 447 U.S. 102, 118 (1980) (stat­ing that “ordi­nar­i­ly even the con­tem­po­ra­ne­ous remarks of a sin­gle leg­is­la­tor who spon­sors a bill are not con­trol­ling in ana­lyz­ing leg­isla­tive history.”).

34. See Gay­lor, 919 F.3d at 427–28 cit­ing Edwards, 482 U.S. at 586–87 (stat­ing “[w]e will defer to a government’s sin­cere artic­u­la­tion of sec­u­lar pur­pose, so long as the plain­tiffs have not proved that artic­u­la­tion of pur­pose is a sham.”)

35. Lemon, 403 U.S. at 612.

36. See Chemerin­sky, supra note 10, at 713.

37. Although oth­er per se exemp­tions from § 119(a)(2) exist, they are dis­tin­guish­able since they apply to gov­ern­ment employ­ees. See 26 U.S.C § 912; 26 U.S.C. § 134. The gov­ern­ment is enti­tled to pay their employ­ees how­ev­er they see fit and any con­sti­tu­tion­al chal­lenge would like­ly fail under the def­er­en­tial ratio­nal basis test.

38. 483 U.S. 327 (1987).

39. See id. at 335 (stat­ing that exempt­ing reli­gious orga­ni­za­tions from Title VII was jus­ti­fied in order “to alle­vi­ate sig­nif­i­cant gov­ern­men­tal inter­fer­ence with the abil­i­ty of reli­gious orga­ni­za­tions to define and car­ry out their reli­gious missions.”).

40. Brief for Tax Law Pro­fes­sors as Ami­ci Curi­ae Sup­port­ing Plain­tiff-Appellee at 13, Gay­lor v. Mnuchin, 919 F.3d 420 (7th Cir. 2019) (Nos. 18–1277 & 18–1280), 2018 WL 3311509, at *13.

41. Lemon, 403 U.S. at 612–13.

42. Lynch v. Don­nel­ly, 465 U.S. 668, 684 (1987).

43. See, e.g., Ser­bian East­ern Ortho­dox Dio­cese v. Milivo­je­vich, 426 U.S. 696, 708 (1976) (hold­ing civ­il courts can­not inter­fere with the rul­ings of church tri­bunals on church affairs); Lemon, 403 U.S. at 621–22 (hold­ing that the com­pre­hen­sive state sur­veil­lance nec­es­sary to ensure statu­to­ry restric­tions are fol­lowed was exces­sive entanglement).

44. See Rev. Rul. 72–606, 1972–2 C.B. 78.

45. Lemon, 403 U.S. at 621–22.

46. 565 U.S. 171 (2012).

47. Com­pare Rev. Rul. 72–606, 1972–2 C.B. 78, with id. at 190–92 (inquir­ing into Hosanna-Tabor’s employ­ment to deter­mine whether she qual­i­fied as a minister).

48. See, e.g., Coun­ty of Alleghe­ny v. Am. Civ. Lib­er­ties Union Greater Pitts­burgh Chap­ter, 492 U.S. 573, 657 (1989) (Kennedy, J., dissenting).

49. Town of Greece v. Gal­loway, 572 U.S. 565, 577 (2012).

50. Van Orden v. Per­ry, 545 U.S. 677, 691–92 (2005) (plu­ral­i­ty opinion).

51. Gal­loway, 572 U.S. at 583.

52. The con­cerns of hos­til­i­ty many jus­tices have regard­ing the Lemon test stems from the Court’s “reli­gious sym­bol” jurispru­dence. For exam­ple, in Coun­ty of Alleghe­ny v. Amer­i­can Civ­il Lib­er­ties Union, a reli­gious sym­bol case, Jus­tice Kennedy remarked that an approach which failed to con­sid­er the nation’s his­to­ry and “her­itage would bor­der on latent hos­til­i­ty to reli­gion, as it would require gov­ern­ment in all its mul­ti­fac­eted roles to acknowl­edge only the sec­u­lar, to the exclu­sion and so to the detri­ment of the reli­gious.” 492 U.S. at 657 (1989) (Kennedy, J., dis­sent­ing). A rel­a­tive­ly unknown pro­vi­sion with­in the Unit­ed States Tax Code does not raise such reli­gious hos­til­i­ty con­cerns. See also Alex J. Luchen­itser and Sarah R. Goetz, A Hol­low His­to­ry Test: Why Estab­lish­ment Clause Cas­es Should Not Be Decid­ed through Com­par­isons with His­tor­i­cal Prac­tices, 68 Catholic L. Rev. 664–65 (argu­ing that the lim­it­ed fed­er­al prac­tices at the time of the Found­ing shed lit­tle light on mod­ern Estab­lish­ment Clause controversies).