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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Sunday, November 24, 2013

District Court: § 107 Housing Allowance for 'Ministers of the Gospel' Violates the Establishment Clause

Freedom From Religion Foundation v. Lew (W.D. Wisc. Nov. 22, 2013):

§ 107(2) ["In the case of a minister of the gospel, gross income does not include ... the rental allowance paid to him as part of his compensation."] violates the establishment clause under the holding in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), because the exemption provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise. ... Because a primary function of a “minister of the gospel” is to disseminate a religious message, a tax exemption provided only to ministers results in preferential treatment for religious messages over secular ones. ... [I]f Congress believes that there are important secular reasons for granting the exemption in § 107(2), it is free to rewrite the provision in accordance with the principles laid down in Texas Monthly and Walz so that it includes ministers as part of a larger group of beneficiaries. ... As it stands now, however, § 107(2) is unconstitutional.

(Hat Tip:  Howard Friedman, Lori McMillan, Steven Sholk.) Prior TaxProf Blog coverage:

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Judge Barbara Crabb, 74, a Carter appointee with senior status was also the judge in a 2010 case filed by the same plaintiff, in which she ruled that the National Day of Prayer proclaimed by President Bush was unconstitutional. The case was dismissed on appeal for lack of standing.

Posted by: Bob Kamman | Nov 24, 2013 8:42:44 AM