Can God Pay for my House Too?

Where do the priests live? In the attic? Behind the alter? No they live in homes just like the rest of America.  In the current case, Gaylorv. Mnuchin, the Freedom from Religious Foundation has brought a lawsuit against the IRS specifically Code Section 107(2), which allows a minister to receive tax-free housing from a church, whether the church provides it directly, through a church owned residence, or indirectly through a housing allowance.  Secular employees must pay income tax on the full value of their employer-provided housing with few exemptions. 

The co-founders of the Freedom From Religion Foundation sought a tax refund on their housing under Code Section 107(2), and we denied, due to the fact that they were not “minister of the gospel”, creating the them standing, they had previously lacked, and bring the case to court.  Many religious leaders believe that to best serve their communities they need to live in convenient locations relative to their place of worship.  Code Section 107(2) allows ministers, particularly Chris Butler, a pastor in the South Side of Chicago, who relies on the housing allowance and tax exemption to live near his congregation.  Congress has expanded the “convenience of employer” doctrine to ministers of all faiths, including Southern Baptist, Eastern Orthodox, Hindu, and Muslim organizations, even though the specific language of the law says “ministers of the gospel”, this is not a case of religious discrimination.  The Freedom from Religious Foundation is arguing that the exemption is a violation of the First Amendment Establishment Clause, specifically prohibiting the government from making laws that shows partiality for religion over secular groups.

The tax exemption is not only aiding religious leaders living in urban developments, but televangelists like Kenneth Copeland’s 1,500-acre property, although his private jet-plane is not covered, as of his recent loss in court.  One argument against the tax exemption is that some religious leaders who qualify for the tax exemption do not truly need one, and are using their status as religious leaders to evade paying taxes.  This preferential treatment to all religious leaders although facially neutral, lacks a secular option that the Freedom From Religion Foundation believes is a violation of the First Amendment.

Proponents of the tax exemption argue that the singling out religious ministers does not pose a threat to the constitutional free exercise clause because it is not a direct subsidy, and is thus not violating the free exercise clause.  Another argument is that religious leaders need to have the ability to live in relative close proximity to their places of worship to best preform their job and serve society.  There are convenient housing tax exemptions for people who must live in the communities they serve including military service members, teachers, and overseas workers.  There is also an argument that the tax exemption is accommodating religious leaders First Amendment Free Exercise Rights.

Judge Crabb used the Lemon test, established in Lemon v. Kurtzman, when assessing Code Section 107(2).  The Lemon test necessitates that a law regarding religion must have a secular legislative purpose, cannot have any effect that may inhibit religion, and must avoid excessive government entanglement with religion.    The court has currently decided that the law does not have a secular purpose, rather it was used as a “tool in the fightagainst godless communists” and is thus a violation of the Frist Amendment Establishment Clause.

A group of churches are currently appealing the October ruling of Judge Crabb asserting the tax exemption, Code Section 107(2) violated the Establishment Clause, sending Gaylor v. Mnuchin to the United States Court of Appeals in the Seventh Circuit.

I agree with the current standing of the court, that Code Section 107(2), is unconstitutional under the First Amendments Establishment Clause for the simple fact that there is no equivalent secular option.  Although there are tax exemptions for other secular groups that require convenient housing, the specific Code Section 107(2) does not pass the Lemon test.  The primary purpose of the law is to provide a benefit for religious groups, acting as a preference to ministers and other religious equivalents over secular employees.