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Fed judge strikes clergy housing allowance

October 11, 2017 By Baptist Press

MADISON, Wisc. (BP) – For a second time a federal judge in Wisconsin has ruled the U.S. Tax Code’s ministerial housing allowance is unconstitutional.

But the ruling does not impact Missouri clergy, only those in Wisconsin so far, said Missouri Baptist Convention general counsel Michael Whitehead.

U.S. District Judge Barbara Crabb once again attempted to strike down the housing allowance, issuing her decision on Oct. 9. Her previous ruling on the matter was struck down by the Seventh U.S. Circuit Court of Appeals.

Codified as part of a 1954 law, the ministerial housing allowance permits “ministers of the Gospel” to exclude for federal income tax purposes a portion or all of their gross income as a housing allowance. The Internal Revenue Service has interpreted the law broadly to include religious workers of various faiths as “ministers of the Gospel.”

The benefit saves ministers an estimated $800 million annually, according to Christianity Today.

Crabb, an appointee of President Carter who ruled the National Day of Prayer unconstitutional in 2010, said the ministerial housing allowance violates the Constitution’s Establishment Clause – which bans government-established religion – “because it does not have a secular purpose or effect and because a reasonable observer would view the statute as an endorsement of religion.”

As evidence of the law’s intent to favor religion over irreligion, Crabb quoted its congressional sponsor, Rep. Peter Mack, as stating during a 1953 hearing on the ministerial housing allowance, “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.”

In 2013, Crabb similarly ruled the ministerial housing allowance unconstitutional. But the Seventh Circuit overturned her decision, ruling the plaintiffs – the Freedom From Religion Foundation (FFRF) – lacked standing.

The FFRF is a plaintiff once again in the current lawsuit, arguing the IRS has violated the Constitution by refusing to permit its leaders to claim the ministerial housing allowance. This time, Crabb wrote in her 47-page opinion, the organization and its leaders have satisfied the appeals court’s requirements to attain legal standing.

The Becket Fund for Religious Liberty, a conservative nonprofit legal group that represents some defendants in the case, argues Crabb’s ruling is in error.

“For nearly 100 years, pastors, rabbis, imams and other faith leaders – whose jobs require them to live close to their church or in an underserved community – have been eligible for the parsonage allowance,” Becket stated in an Oct. 9 news release. “This tax provision ensures that faith leaders … receive the same tax treatment as other employees who must live in the communities they service – like military service members, teachers and overseas workers.”

GuideStone Financial Resources President O.S. Hawkins said in a news release, “We have monitored this case and its predecessor cases closely and will seek as part of a long-standing coalition of ministerial benefit boards to file a friend-of-court brief on appeal at the appropriate time.

“The housing allowance, far from being a government endorsement of religion, as Judge Crabb contends, actually removes government from the equation. Were it not for the housing allowance, the government would be imposing a tax on religious employers and their employees that is not imposed on non-religious employers,” Hawkins said.

Crabb ordered both sides to submit briefs by the end of October on whether the plaintiffs should receive “additional relief.” GuideStone said it anticipates a final judgment before the end of the year, which likely will be stayed while the case is appealed and have no immediate effect on ministers. 

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