Among the good news surrounding President Trump's endeavor to nominate scores of judges to federal courts is a disturbing development for religious liberty in Wisconsin. U.S. District Judge Barbara Crabb ruled last week that a 65-year-old income-tax exemption for housing for members of the clergy violates the First Amendment's "establishment clause because it does not have a secular purpose or effect and because a reasonable observer would view the statute as an endorsement of religion."
This could be a blow to religious freedom nationwide and threatens almost $1 billion in new taxes on houses of worship.
Crabb sided with an atheist organization, the Freedom From Religion Foundation, which challenged the law in a federal complaint, claiming the tax break discriminates against secular employees in violation of the First Amendment's establishment clause and the Fifth Amendment's equal protection clause.
"Although defendants try to characterize § 107(2) as an effort by Congress to treat ministers fairly and avoid religious entanglement, the plain language of the statute, its legislative history and its operation in practice all demonstrate a preference for ministers over secular employees," Crabb wrote in her decision.
For almost 100 years, the parsonage allowance has been in effect for people whose jobs require them to live close to their church or community. The Becket Fund represents Pastor Chris Butler, a South Side Chicago-based pastor who serves his community through various means and would be adversely affected by this decision.
In a statement reacting to the ruling, Butler said:
This decision is crippling to the equal treatment of our nation's faith leaders--but it will not stand. Our job and our life's purpose are one and the same: to serve our congregations and our communities 24/7. Living close to our faith communities is vital to our missions, and we should not face discriminatory tax penalties for doing so.
FFRF has made its name going after cases such as this one, like a bulldog to a bone, sometimes prevailing and sometimes just missing the mark. In 2014, they sued the IRS to prevent faith leaders from receiving equal tax treatment, threatening the viability of hundreds of thousands of churches and the communities they serve. They've done the same again in Freedom From Religion Foundation v. Trump where they filed a lawsuit in a Wisconsin district court demanding that the IRS enforce pulpit speech restrictions that would essentially threaten a church's tax-exempt status.
In her decision, Crabb noted the "unique benefit" that ministers receive under the parsonage allowance writing, "A desire to alleviate financial hardship on taxpayers is a legitimate purpose, but it is not a secular purpose when Congress eliminates the burden for a group made up of solely religious employees but maintains it for nearly everyone else."
Naturally, Becket's lawyer disagrees, citing discrimination. In a statement, Hannah Smith, senior counsel for the religious liberty law firm said, "It's not unconstitutional for the federal government to treat faith leaders the same as other secular employees in their housing allowances. In fact, treating them differently would be discrimination against religion, pure and simple."
Anyone who doesn't like the myriad of judges Trump has been nominating only needs to take a second look at this decision to see why said nominations are so important.
Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.
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