The constitutional challenge to the exclusion of a minister’s housing allowance has been voluntarily dismissed. The plaintiffs — including Michael Newdow, famous for his unsuccessful challenge to “under God” in the Pledge of Allegiance — concluded that under recent Supreme Court precedent, they wouldn’t be able to establish “standing” to pursue the case.
In the courts, a statute can’t be challenged as unconstitutional unless the person filing suit (the plaintiff) will be directly impacted by the decision. The Supreme Court held earlier this year that private individuals do not have standing to challenge tax credits and exclusions for First Amendment violations.
In short, ministers may continue to claim their housing allowances as excluded from federal income tax without fear that the exclusion might be found unconstitutional.
(Thanks to reader Robert Baty for bringing this to my attention.)
Meanwhile, the Supreme Court has just affirmed an earlier decision finding the use of “under God” in the Pledge of Allegiance to be constitutional, putting an end to that challenge.
The case was refiled in Wisconsin and Judge Barbara Crabb issued an ORDER yesterday denying the Government’s motion to dismiss for lack of “standing”.
“Standing” to challenge the constitutionality of the income tax free ministerial benefit has been granted and the case will be allowed to go forward for a decision on the merits.
HOORAY!
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
FREEDOM FROM RELIGION FOUNDATION, INC.,
ANNIE LAURIE GAYLOR,
ANNE NICOL GAYLOR
and DAN BARKER,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
(excerpts)
OPINION AND ORDER
ORDER
IT IS ORDERED that
1.
Defendant United States of America’s motion
to dismiss, dkt. #16, is DENIED.
2.
The motion to amend the caption of the complaint
filed by plaintiffs Freedom from Religion Foundation,
Inc., Annie Laurie Gaylor, Anne Nicol Gaylor and Dan
Barker, dkt. #26, is GRANTED.
The caption is AMENDED to include Timothy Geithner
and Douglas Shulman in their official capacities.
3.
Because the deadlines in this case have been stayed
pending this order, the clerk of court is directed
to set up a new scheduling conference with the magistrate
judge.
Entered this 29th day of August, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
————————————–
————————————–
Forbes has published a guest column dealing with the prospects that the issue will be one for Obama and Romney to address as part of their campaigns.
Here’s the link to the column:
http://www.forbes.com/sites/peterjreilly/2012/09/01/where-do-romney-and-obama-stand-on-special-tax-status-for-ministers/
Forbes has added another column on the issue with emphasis on what one Southern Baptist preacher and blogger has to say about it.
Here’s the link:
http://www.forbes.com/sites/peterjreilly/2012/09/02/southern-baptists-against-clergy-tax-abuse/
A couple of lawyers from the conservative Liberty Institute have had an article published in the conservative Texas Review of Law & Politics (TROLP) dealing with the IRC 107 problems. I consider it somewhat of a vindication of my feeble efforts over the years inasmuch as it admits to the problems with IRC 107 (e.g., even implicitly admitting that 70-549 is a “taint” on IRC 107).
I do not think the effort to present a “broad defense” of IRC 107 works, but it appears to reflect what could be a hard fought battle to salvage IRC 107 in the context of the ongoing litigation in the FFRF IRC 107 Challenge case pending before Judge Crabb in Wisconsin federal district court.
Here’s the link to the TROLP/Liberty Institute article:
http://www.trolp.org/main_pgs/issues/v16n2/Butterfield.pdf
This exemption is an unfortunate anachronism, but one which really did little harm to the public treasury and one to which most folks did not object. However, it only takes a little greed by wealthy clergymen taking advantage of such loopholes for their own lifestyles to wake up the public to this little ministerial trough. Expect this to be a hard one to salvage, in the courts and moreso in the court of public opinion. The wise thing would be for clergy to publicly recant this long-standing tax treatment in the public interest, instead of being stripped of it as a just another undeserving special interest group.
The only justification for keeping this tax advantage is money. Is that so important to us?
Charles,
I appreciate your comments.
I think it was our host here who once opined in the context of this matter:
> Pigs get fat.
> Hogs get slaughtered.
I think it’s interesting that within days of the first suit being filed in California the Pacific Justice Institute had its motion filed to intervene on behalf of one named preacher and 100 anonymous preachers in order to help the Government defend the law and that no such attempt at intervention has been filed in the present case.
It makes me wonder what the “religious lobby” is up to in this case.
Are they working behind the scenes to try and get some legislation to moot the FFRF challenge?
Are they resigned to accepting, as you propose, what appears to possibly be a losing cause?
Will Mitt Romney and Barack Obama being asked to address this matter as part of their campaigns; considering all the “God” talk and tax talk lately from them?
Will our host here be further opining given his expertise in the area?
Jay?
Sincerely,
Robert Baty