Originally published on Forbes.com June 4th, 2014
Freedom From Religion Foundation has filed its answer to the Government’s brief in its appeal of Judge Barbara Crabb‘s decision declaring the unconstitutionality of Code Section 107(2) – income tax-free cash housing allowances, with no dollar limits, for “minsters of the gospel”. FFRF opens strong, if not with perfect accuracy:
The Government and interested amici (“Government”) have little to say about neutrality, a critical requirement of the Establishment Clause, perhaps because Section 107(2) of the Internal Revenue Code undeniably confers a significant tax benefit upon religious clergy not available to non-clergy taxpayers. Only ministers can exclude cash housing allowances, a result that is patently unfair. Thus, whereas the Bible commands citizens to “render on to Caesar the things which are Caesar’s,”the Government simply dismisses or ignores basic principles of neutrality and fairness when it comes to clergy taxation.
Just A Bit Inaccurate
Members of the Armed Services also receive income tax-free housing allowances, when not provided with on-base housing. Of course, the limited nature of such allowances, which vary by rank and region (more by region that rank) and top out at a bit over $4,000 per month for a flag officer in Hawaii do not invite the type of abuse seen with the minister’s housing allowances which can run into hundreds of thousands per year for televangelists and the mega pastors of the mega churches.
The other inaccuracy is something which someone as prone to typos as I probably should not mention, but I just cannot resist. “Render on to Caesar”? I think most of us would expect “Render unto Caesar, which while admittedly archaic is the way Wikipedia cites it. (see note)
A Targeted Approach
The brief spends a lot of time on the standing issue which is probably the Government’s ace-in-the-hole. American Atheists Inc just got shot down on standing as it tried a broad-based attack on all the Internal Revenue Code provisions that favor religion. FFRF is aiming at just one in this case and by paying its own officers housing allowances, it is not expressing a generalized grievance.
Religious clergy can pay virtually all their housing costs with tax-free dollars, but similarly situated taxpayers cannot get this benefit without religious affiliation.
The idea that FFRF officers might be “ministers of the gospel” is rather laughable but addressed nonetheless including the many ways in which FFRF is not a church.
What About Free Exercise?
One of the Government’s defenses of cash housing allowances for clergy, as opposed to anybody else, is that it keeps the IRS from poking around about whether in-kind housing is really necessary. FFRF points out that the determinations needed to implement 107(2) are much more intrusive
…..requires fact-sensitive and complex inquiries into patently religious matters, such as defining “ministers of the gospel”, “sacerdotal function”, “integral agency” …. and “church. Entanglement, therefore, is inherent in 107(2)
Maintaining Parity Among Religions
Another Government argument is that 107(2) provides neutrality among religions since some might be more likely to provide housing in-kind. Quoting from a law review article FFRF indicates that leveling the playing field between poor and rich religions is hardly a legitimate government function.
Housing Allowance Creates Entanglement
One justification for treating religious organizations differently is the “free exercise” clause of the First Amendment which can be in tension with the “establishment clause”. We want to avoid entangling the government with religion. The brief does a pretty good job of showing the manner in which 107(2) actually increases entanglement rather than decreasing it.
One example is the way in which the controversy over whether cantors qualify as “ministers of the gospel”. In order to make that determination there had to be inquiry into the “significance of ordination in the Jewish religion”.
Much to the delight of my most constant commenter, retired IRS appeals officer, and bane of the basketball ministers Robert Baty, the brief gets into the difficulties the IRS must resolve to determine whether a Christian college is an “integral agency of a church”. Once that determination is made positively any faculty members qualify for exclusion, if they happen to be ordained, regardless of what they are teaching. Religions with a “priesthood of all believers” theology benefit from this quirk.
What Is Next?
The amicus briefs should start flowing soon and I am looking forward to them. There are a small number of clergy, who believe that the housing allowance, at least as it is practiced, is actually bad for the cause of religion. Many moderately compensated clergy would gladly give up their income tax exclusion in exchange for a FICA match. Of course, if that were to happen congregations would have to pick up their slack. I really think that rather than fight to defend this benefit denominations, whose moral capital is already pretty withered, would be better served to wash their hands of it and appeal to congregations to “make their pastors whole” with a one-time pay bump. Of course, the mega pastors who keep their outlandish pay packages secret would probably have to take a hit, but they can afford it.
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Note
I realize that not everybody is going to get excited about FFRF’s “unto”/”on to” gaffe which is probably just a typo, and I certainly have too many of them myself to get huffy about it. Nonetheless, here is my “unto”/”on to” discussion which I moved downstairs.
According to Wikipedia
Ἀπόδοτε οὖν τὰ Καίσαρος Καίσαρι καὶ τὰ τοῦ Θεοῦ τῷ Θεῷ
is from Matthew Chapter 22 Verse 21 and appears in some form in all three Synoptic gospels. “Unto” is what is used in the King James Version, which I tend to favor because it sounds so Biblical. Kent Hovind and a few others maintain that King James is as inspired as the original texts, which allows him and his friends to be Bible experts without studying Hebrew, Greek, and Aramaic.
Of course, there are quite a few English translations that do not use the archaic “unto“, but, with an admittedly less than thorough search, I have not been able to find one that substitutes “on to” for “unto”. It may be that in its zeal to establish that the FFRF officers receiving housing allowances could not possibly qualify as “ministers of the gospel”, they are subtly reminding us that they don’t even have a copy of the Bible in their reference section. If that is the case, I think they have overdone it. Until Freedom From Religion Foundation reaches its Nirvana, familiarity with the Bible will remain a mark of cultural literacy among educated Americans.
Although it is a bit tangential, it is worth noting that Biblical scholars who do not hold with the “inerrancy” of the canonical books, do not believe that Jesus actually said most of the things he is reputed to have said. The “Jesus Project” took an organized approach to this controversy and had scholars vote on 1500 versions of 500 items attributed to Jesus in any extant work from the first three centuries of the Common Era. The “Render Unto Caesar” quote ranked eighth as something that it is likely Jesus actually said. Besides the three synoptic Gospels, it also shows up in the Gospel of Thomas (“Turn the other cheek” comes in first, for whatever that is worth).