Brief Filed in Clergy Housing Exclusion Case
The Church Alliance—a coalition of the chief executive officers of 38 denominational benefit programs—has filed an amicus curiae brief in the Seventh Circuit U.S. Court of Appeals (Chicago) in the case challenging the constitutionality of the clergy housing exclusion under Section 107(2) of the Internal Revenue Code of 1986 (Code).
The Church of God Benefits Board, Inc. is a member of the Church Alliance, a coalition of the chief executive officers of 38 church benefit programs. It includes mainline Protestant denominations, two branches of Judaism, and Catholic dioceses, schools and institutions. The benefit programs provide retirement and health benefits to more than 1 million clergy, lay workers, and their family members.
The case is Freedom From Religion Foundation, Inc., et al. v. Jacob Lew, et al. (FFRF v. Lew). The U.S. government is appealing a decision by Judge Barbara Crabb, U.S. District Court for the Western District of Wisconsin (November 2013) that Code §107(2) is unconstitutional.
Code §107(2), commonly called “clergy housing exclusion” or “clergy housing allowance,” excludes from income taxation the cash compensation provided to “ministers of the gospel” (clergy) toward the cost of their housing. This section of the Code essentially excludes the value of clergy-owned housing from income taxation. It is related to Code §107(1), which excludes from a minister’s taxable income the value of church-provided housing (commonly called a parsonage, vicarage or manse). The FFRF v. Lew appeal does not involve a challenge to Code §107(1).
Judge Crabb ruled that Code §107(2) is unconstitutional because it violates the Establishment Clause of the First Amendment to the U.S. Constitution. Under the Establishment Clause, “Congress shall make no law respecting an establishment of religion… .” Judge Crabb stayed the effect of her ruling until all appeals are exhausted. The government’s opening brief was filed on April 2, 2014.
The Church Alliance brief adds a perspective not duplicated in the government’s brief, focusing on the jurisprudential history of permitted legislative accommodations of religion. The brief argues that Code §107(2) is a constitutionally permitted accommodation of religion when viewed in the context of Code §107(1), the parsonage exclusion, and Code §119, which excludes employer-provided housing from employees’ incomes in numerous secular circumstances.
Barbara Boigegrain, chief executive of the General Board of Pension and Health Benefits of The United Methodist Church and chair of the Church Alliance, said, “The Church Alliance has a substantial interest in the validity of Code §107(2) because of the immediate impact on compensation and housing of active clergy in the benefit plans of its member denominations, and also because of the indirect impact on retirement benefits.”
Art Rhodes, director of Church of God Benefits Board, Inc., said, “As parties to the ‘friend of the court’ brief, the Church of God Benefits Board and the denomination are hopeful that the Court of Appeals will recognize that the ministerial housing allowance is not a benefit that violates the Constitution, but simply a part of the compensation package of ministers. The legal basis for allowing the appellate court to make such a ruling has clearly been set out in the Amicus brief and we are believing for a positive outcome.”
The members of the Church Alliance stand with other religious organizations in their vested interest in the outcome of this litigation. The clergy housing exclusion is important to millions of active and retired clergy from the 38 Church Alliance-represented denominations. In addition to the Church of God, they include, among others, American Baptist Churches in the U.S.A., Church of the Nazarene, Christian Church (Disciples of Christ), Christian Brothers Services, Episcopal Church, Evangelical Lutheran Church in America, Joint Retirement Board for Conservative Judaism, Lutheran Church-Missouri Synod, Presbyterian Church (U.S.A.), Reform Pension Board, Southern Baptist Convention, United Church of Christ, and The United Methodist Church.
