- The Washington Times - Saturday, June 15, 2019

A nonprofit group that advocates for “freedom from religion” has missed a key deadline in its effort to end a tax exemption for ministers’ housing allowances.

The Freedom From Religion Foundation missed last week’s deadline to appeal a ruling by a three-judge panel of the 7th U.S. Circuit Court of Appeals that had upheld a 60-year-old law that excludes ministers’ housing allowances from income taxes.

The Wisconsin-based group had sought to challenge the tax exemption by paying its co-presidents, Annie Gaylor and Dan Barker, a portion of their salaries as a housing allowance, though neither of them meet the law’s definition of “minister.”

“We’re not waving the white flag,” Ms. Gaylor told The Washington Times with regard to the decision not to appeal. “But we’re letting the clock running out. It’s been 10 years fighting, and the composition of the courts are changing under Trump.”

Becket, a religious-liberty law firm, said in a press release that, if the Freedom From Religion Foundation had won, taxes on religious organizations would have increased by $1 billion.

“This is a victory for all houses of worship that serve needy communities across the country,” the Rev. Chris Butler, pastor of Chicago Embassy Church, said in a statement released by Becket, which represented him and two other ministers who intervened in the federal lawsuit.

“I am grateful that my church can still be home for South Side Chicago’s at-risk youth, single mothers, unemployed, homeless, addicted, victims of gang violence and others on the streets,” Mr. Butler said.

The 7th Circuit reversed a federal judge’s ruling that had voided part of the federal tax code that exempts ministers from paying taxes on religiously affiliated home property such as a parsonage.

The tax code defines ministers as “individuals who are duly ordained, commissioned, or licensed by a religious body constituting a church or church denomination.”

As many as 300,000 U.S. congregations provide housing allowances to ministers under an exemption, 26 U.S.C. § 107(2), passed in the 1950s, according to estimates by the University of St. Thomas School of Law in Minnesota. Attorneys for the Freedom From Religion Foundation argued that the tax exemption violates the Constitution’s Establishment Clause, citing Rep. Peter Mack, the Illinois Democrat who sponsored the legislation.

“Certainly, in these times when we are being threatened by a godless and anti-religious world movement, we should correct this discrimination against certain ministers who are carrying on such a courageous fight against this foe,” Mack argued before Congress in 1953.

But 7th Circuit Judge Michael B. Brennan, writing for the panel’s unanimous decision, disagreed with the attorneys’ contention that Mack’s speech determined the final word on the law.

“This smattering of legislative history does not establish Rep. Mack’s motives in proposing the bill,” Judge Brennan said. “Even if his first quote above did so, the motivation of one representative in a House of 435 does not definitively reveal the impetus behind the bill’s passage.”

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