In what religious nonbelievers might find patently irrational, the U.S. 7th Circuit Court of Appeals in Chicago on March 15 overturned a lower-court decision by ruling that a tax-free housing allowance for of a “minister of the gospel” is “secular” in nature.
Once again — as we have seen in the evangelical campaign to prominently post “In God We Trust” is schools and government buildings nationwide — a court has decided that pointedly benefitting clergy over non-clergy, church over state, is constitutional if traditional.
And because the vast majority of Americans and its churches are Christian, it also favors a single religion, Christianity.
Judge Michael B. Brennan, who penned the three-judge court’s opinion last month, wrote that even though the plaintiffs, led by the Freedom From Religion Foundation (FFRF), properly alleged a “concrete, dollars-and-cents injury,” the court rejected the FFRF’s argument 3-0 on its overall merits. In explanation, he added that the housing tax exemption for clergy:
“… has a secular legislative purpose, its principal effect is neither to endorse nor to inhibit religion, and it does not cause excessive government entanglement.”
The case was an appeal brought by FFRF after an initial case in 2014 was dismissed because the court said the foundation, to sue, had to prove its “standing” by showing financial injury. So, three members of the FFRF — a nonreligious organization whose members do the same thing as clergy but opposite (preaching nonchurch, nonreligious freedom) — formally claimed they should have the same exemption as church clergy and submitted claims for housing-allowance exemptions. When refused, they sued.
At first, a favorable ruling
In 2013 U.S. District Judge Barbara Crabb had ruled in FFRF’s favor on the same issue, which sent “shockwaves through the religious community,” according to the Evangelical Council for Financial Accountability, which “bitterly fought” the ruling, the FFRF reported in the April 2019 edition of its Freethought Today magazine.
None of this probably makes much sense to those uninformed about the arcane legal and cultural history of tax exemptions for clergy.
In recent years, courts, including the U.S. Supreme Court, have tended to view many manifestly religious symbols and sayings — e.g., Christian crosses and the proverbial phrases “In God We Trust” and “One Nation, Under God” — as largely “secular” by dint of their ubiquity in the American cultural landscape for centuries. And the high court also has allowed after-school clubs run by adult evangelicals on school properties under the guise of nondiscrimination, considering that nonreligous clubs are allowed the privilege.
Why grant church tax exemptions?
One might ask why religious organizations are allowed tax exemptions in the first place, and the answer is surprising. A 2008 Los Angeles Times point-counterpoint op-ed tried to explain why, referencing a 1970 U.S. Supreme Court decision:
“In its 1970 opinion in Walz vs. Tax Commission of the City of New York, the high court stated that a tax exemption for churches ‘creates only a minimal and remote involvement between church and state and far less than taxation of churches. [An exemption] restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.’ The Supreme Court also said that ‘the power to tax involves the power to destroy.’ Taxing churches breaks down the healthy separation of church and state and leads to the destruction of the free exercise of religion.”
Erik Stanley, senior legal counsel and head of the Pulpit Initiative for the Alliance Defense Fund, argued in the Times piece that “an exemption for churches from taxes tends to reinforce a very healthy separation between church and state.”
Except that it’s an exemption based on religion, whereas if churches were taxed along with every other individual and entity they would receive completely equal treatment, and their “entanglement” with state would be purely functional. And in either case government is involved, either to ratify the exemption or collect taxes.
No constitutional mandate
In the Times article, the Rev. Barry W. Lynn, a civil liberties attorney and executive director of Americans United for Separation of Church and State, said that although all levels of government reached a consensus early in U.S. history to grant tax exemptions to churches,
“The Constitution does not mandate it; and indeed, even the decision you cite — the Walz case — doesn’t say that tax exemptions are required by the 1st Amendment. In general, governments believed that churches along with other types of community groups enhanced and supplemented government services such as feeding the hungry, housing those in need of shelter and in general using private funds for public good.”
If Christians had not overwhelmingly predominated in the colonial settlement of America, we would almost certainly not still be having these so-called “religious freedom” issues today.
But no.
In the latest 7th Circuit decision, Judge Brennan further explained:
“FFRF claims [this provision] renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by latter. We conclude [it] is constitutional. The judgment of the district court is reversed.”
I guess I’ll have to accept he’s right because I have no idea what he’s saying.
And it shows why this question never seems to get resolved.
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