For the foregoing reasons, the decision of the Tax Court is correct and should be affirmed.

Respectfully submitted,

    • Assistant Attorney General
  • JONATHAN S. COHEN (202) 514-2970
  • MARION E.M. ERICKSON (202) 514-9861
    • Attorneys Tax Division, Department of Justice
    • Post Office Box 502, Washington, DC 20044

JULY 2006


It is hereby certified that, on this 28th day of July, 2006, this brief was mailed to the Clerk via First Class United States Mail and was served on counsel for the appellant and on counsel for the amicus curiae, New York Yearly Meeting of the Religious Society of Friends, via First Class United States Mail by mailing them two copies each thereof in envelopes properly addressed as follows:

  • Frederick R. Dettmer, Esq.
    • Law Office of Frederick R. Dettmer
    • 340 Corlies Avenue, Pelham, New York 10803
  • Thomas Whyatt, Esq.
    • Oxman Tulis Kirkpatrick Whyatt and Geiger LLP
    • 120 Bloomingdale Road, White Plains, New York 10605-1500
    • Attorney



§ 2000bb. Congressional findings and declaration of purposes

  1. Findings

    The Congress finds that-

    1. the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
    2. laws “neutral” toward religion may burden religious exercise assurely as laws intended to interfere with religious exercise;
    3. governments should not substantially burden religious exercise without compelling justification;
    4. in Employment Division v. Smith, 494 US 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
    5. the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
  2. Purposes

    The purposes of this chapter are–

    1. to restore the compelling interest test as set forth in Sherbert v. Verner, 374 US 398 (1963) and Wisconsin v. Yoder, 406 US 205 (1972)and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
    2. to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

§ 2000bb-1. Free exercise of religion protected

  1. In general

    Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

  2. Exception

    Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-

    1. is in furtherance of a compelling governmental interest; and
    2. is the least restrictive means of furthering that compelling governmental interest.
  3. Judicial relief

    A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.

    Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

§ 2000bb-2. Definitions

As used in this chapter-

  1. the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law)of the United States, a State, or a subdivision of a State;
  2. the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
  3. the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and
  4. the term “exercise of religion” means the exercise of religion under the First Amendment to the Constitution.

§ 2000bb-3. Applicability

  1. In general

    This chapter applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.

  2. Rule of construction

    Federal statutory law adopted after November 16, 1993 is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

  3. Religious belief unaffected

    Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

§ 2000bb-4. Establishment clause unaffected

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.