Don’t panic about the clergy housing allowance. You wouldn’t know it from the breathless posts in social media, but the fate of the clergy housing allowance is far from decided.
Here is what has happened so far.
Barbara Crabb, a district court judge in Wisconsin has ruled “that § 107(2) of the Internal Revenue Code (the cash housing allowance for clergy) violates the establishment clause of the First Amendment because it does not have a secular purpose or effect and because a reasonable observer would view the statute as an endorsement of religion.”
However, knowing that her order will be appealed, Judge Crabb has stayed her own order until 180 days following the conclusion of any appeals. The decision has no immediate effect and the provision of a manse was not addressed.
The order is being appealed to the U.S. Court of Appeals for the Seventh Circuit and will take months to work its way through that process. It is quite likely that whichever side loses, there will be an appeal to the U.S. Supreme Court. At each step of the way, the Board of Pensions will join with many faith representatives in filing an amicus brief.
As president of the Board of Pensions, I am a member of the Church Alliance. The Church Alliance is a group of 38 CEOs of Protestant, Catholic and Jewish denominations or traditions that works to protect benefits for clergy and other church workers. We follow matters in the legislative, regulatory and judicial arenas. We actively lobby as we did on tax reform, and in cases like this one, file amicus briefs to protect religious freedom. Despite our widely divergent theologies, we all agree on the importance of protecting faith communities.
The suit mentioned above was brought by the Freedom From Religion Foundation. They previously brought a similar suit, and Judge Crabb ruled that the cash housing allowance was unconstitutional. She was overturned on appeal, but the Court of Appeals did not rule on the First Amendment issue. Instead, the Court found that Freedom From Religion Foundation had no standing to bring the action because they had not suffered damages. Judge Crabb, in dismissing the case, laid out the roadmap for Freedom From Religion Foundation to acquire standing.
So, we knew this was coming and we knew how Judge Crabb would rule. We are hopeful that Judge Crabb will be once again overturned, this time on the First Amendment argument. Our Church Alliance brief will focus on this issue.
If provision of a manse is constitutional, then a cash allowance must be also. It is difficult to equate the communal housing of Catholic brothers with a Protestant manse. What about the high concentration of Jewish rabbis and cantors in New York where rental may be far more economic? Our own Presbyterian commitment to call neutrality means that no single house owned by a congregation could be appropriate for all potential ministers. So if providing a physical structure regardless of location is constitutional, then taxing the cash allowance works to limit religious freedom and such allowance must also be constitutional.
Cross this off your active worry list. We are vigilant and hopeful on your behalf. Besides, ministers have more important things to do.
FRANK SPENCER is the president of the Board of Pensions of the Presbyterian Church (U.S.A.).
