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Jeffrey Zuckerman, a litigation partner at New York-based Curtis, Mallet-Prevost, Colt & Mosle, hasn’t quite resorted to placing personal ads for plaintiffs yet. But he is being unusually candid about plaintiff-shopping. Even more unusual, the shopping isn’t connected to a big-ticket case — it’s a matter Zuckerman took up pro bono. Zuckerman, who works in Curtis Mallet’s Washington, D.C., office, first heard about the case of Michael and Marla Sklar in late 2000 while browsing through an e-mail list dedicated to law and the Jewish community. Michael Sklar had posted there about his case against the Internal Revenue Service, for which he, a CPA, had represented himself at trial in tax court, then drafted the initial appellate brief. Intrigued, Zuckerman offered his firm’s help. The Sklars had discovered that the Church of Scientology had an agreement with the IRS that payments for “auditing” classes — training in the practice of Scientology — were tax-deductible. The Sklars, who sent their children to an Orthodox Jewish school, where more than half of the students’ time is spent in religious education, wanted the same. In their 1994 and 1995 tax returns they declared 52 percent of their children’s tuition as a deduction. The IRS disagreed. Although Zuckerman represented the Sklars at the 9th U.S. Circuit Court of Appeals in the case dealing with their 1994 return — and sparked the judges’ interest enough to turn an argument scheduled for 10 minutes into a 30-minute Q&A session — the Sklars lost in a January 2002 decision. Zuckerman isn’t ready to drop the issue. With a Scientology-only exemption, he says, “the IRS is treating one religion differently from all other religions. It’s such a plain, obvious violation of the Constitution.” The Sklars’ case over their 1995 return is still moving toward trial, but Zuckerman isn’t sanguine about their chances. “One fact of life is that, when it comes to interpretation of the First Amendment, the 9th Circuit has its own unique jurisprudence,” he says. Zuckerman adds that the judge who authored the decision in the first Sklar case was one of the two who ruled in 2002 that the “under God” language in the Pledge of Allegiance was unconstitutional. “I think the 9th Circuit will interpret the law and the Constitution as necessary to avoid conferring any benefit on religious schools or religious-school benefits.” So Zuckerman is searching for another plaintiff, ideally another parent whose child attends a primarily religious school in the 4th Circuit. The 4th, Zuckerman says, is ideal — not only because it’s convenient to his office in Washington, D.C., but also because it’s “a reasonable circuit with respect to First Amendment issues.” He’s publicized the case by reaching out to religious and parochial schools. Some parents in that circuit, he hopes, might find themselves situated similarly to the Sklars — and ready to take on the IRS. Nobody has responded yet, but Zuckerman remains optimistic. At least one establishment clause scholar thinks that the parallels between Scientology’s auditing and the training in Orthodox Judaism may not be that clear. Scientology’s auditing of classes, says Douglas Laycock of the University of Texas School of Law in Austin, is “like paying for a sacrament.” The exemption in question is part of the 1993 agreement in which the IRS recognized Scientology as a religion; in auditing classes, people clear themselves of harmful habits and memories (“engrams”) through one-on-one paid sessions with a counselor. It’s impossible to participate fully in Scientology without paying for auditing classes, which constitute their central religious ceremonies. “[Zuckerman] may feel that a conservative court is sympathetic to religious claims,” says Laycock. But, he points out, even the best-laid forum shopping can go awry. “A conservative court is equally likely to be sympathetic to the government in a tax case.” Zuckerman still holds fast to the belief that “intangible religious benefits” should be deductions for members of every religion, not just one. But for now, the IRS shares one rule with Scientology: Believers have to pay.

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