The federal government filed notice Jan. 24 that it’s appealing the Freedom From Religion Foundation’s significant federal court victory declaring the “parish exemption” unconstitutional. Under the 1954 law, “ministers of the gospel” don’t pay any taxes on salary designated as a “housing allowance.”
U.S. District Judge Barbara B. Crabb for the Western District of Wisconsin issued a strong, 43-page decision on Nov. 22 declaring 26 U.S. C. § 107(2) unconstitutional. The case is FFRF, Annie Laurie Gaylor and Dan Barker v. Jacob Lew, Acting Secretary of the Treasury Department and Daniel Werfel, Acting Commissioner of the International Revenue Service.
The appeal will go before the 7th Circuit U.S. Court of Appeals in Chicago.
The law allows “ministers of the gospel” who are paid through a housing allowance to exclude that allowance from taxable income. Ministers may even use untaxed income to buy a home and deduct interest paid on the mortgage and property taxes — known as “double dipping.”
The clergy benefit costs the government up to $700 million a year in lost revenue, and benefits not just ministers but their employer churches, which can pay ministers less because untaxed income goes further.
Christianity Today found that 84 percent of senior pastors receive a housing allowance ranging from $20,000 to $38,000 in added (but not reported or taxed) salary.
“I agree with plaintiffs that §107(2) does not have a secular purpose or effect,” wrote Crabb, adding that a reasonable observer would view it “as an endorsement of religion.”
At the time of the federal ruling, attorney Richard L. Bolton, representing FFRF, noted: “The Court’s decision does not evince hostility to religion — nor should it even seem controversial.” However, the decision set off “shock waves” in the clergy network.
Clergy are permitted to use the housing allowance not just for rent or mortgages, but for a wide range of home improvements, including maintenance and repairs. They may exempt from taxable income up to the fair market rental value of their home, particularly benefiting well-heeled pastors.
The 1954 bill’s sponsor, Rep. Peter Mack, argued ministers should be rewarded for “carrying on such a courageous fight” against a “godless and anti-religious world movement.”
All taxpayers are burdened by taxes, Crabb noted. “Defendants do not identify any reason why a requirement on ministers to pay taxes on a housing allowance is more burdensome for them than for the many millions of others who must pay taxes on income used for housing expenses.”
Gaylor and Barker, as co-presidents of FFRF, are the primary plaintiffs. Crabb agreed they have standing to sue and are injured because FFRF designates part of their salaries as a “housing allowance,” but they are not lawfully able to claim the same benefit “ministers of the gospel” are accorded.
“The clergy and churches have become accustomed to privileges and prerogatives from our secular government which are not only unconstitutional, but which don’t play fair. The rest of us should not have to pay more taxes, because clergy don’t pay their fair share,” said Gaylor.
Barker, a former minister, now heads the volunteer Clergy Project, which helps clergy who have changed their minds about religion leave the pulpit. Barker said he knows hundreds of former ministers who agree with FFRF that “the housing exclusion is an unfair and unwarranted boost from the government and should be abolished.”
The Freedom From Religion Foundation, working with noted state-church attorney Marci A. Hamilton and groups advocating for the rights of victims of religious abuse filed an amicus brief Jan. 27, before the U.S. Supreme Court. The brief opposes Hobby Lobby’s claim that for-profit corporations have a right to deny contraceptive coverage to women workers based on religious objections.
The Hobby Lobby chain of stores argues that it is “a person” under the federal Religious Freedom Restoration Act (RFRA), and that the federal government’s contraceptive insurance mandate imposes a “substantial burden.”
Hamilton successfully argued before the U.S. Supreme Court in City of Borne v. Flores (1997) that RFRA was unconstitutional as applied to state and local governments.
In the amicus brief, Hamilton argues that the unconstitutionality of the federal RFRA “has been lost in the intense public debate between claimed religious liberty for for-profit corporations and women’s reproductive health.”
FFRF’s brief is also signed by Bishop
Accountability.org, Children’s Healthcare Is a Legal Duty (CHILD), the Child Protection Project, the Foundation to Abolish Child Sex Abuse, Survivors for Justice and the Survivors Network of those Abused by Priests (SNAP).
FFRF’s interest in the case arises from its position that “the radical redefinition of ‘religious freedom’ to include a right to impose one’s religious beliefs on others is arguably the greatest threat to individual freedom of conscience.”
FFRF notes that its original founders, Anne Nicol Gaylor and Annie Laurie Gaylor, formed FFRF “partly in response to unwarranted governmental and religious intrusion into a woman’s reproductive health decisions.”
Hobby Lobby was founded by David Green, who has a religious objection to some forms of prescription contraception, and essentially maintains his corporation has a soul and rights of conscience that trump the rights of conscience of his employees.
Green runs a chain of more than 500 craft stores and is challenging the contraceptive mandate of the Affordable Care Act. The law requires health care plans to provide coverage for certain “preventive care” at no additional charge, including immunizations, diabetes screening, AIDS screening and contraception.
“RFRA is being invoked in this case as a license for employers to influence their female employees’ contraception choices,” FFRF contends in the amicus brief.
The amici also assert: “If Hobby Lobby can deploy RFRA to block coverage of women’s reproductive health, the next believer will argue against vaccinations, and the next against screenings for children or domestic violence screening and counseling. There is no limit to the variety of religious believers in the United States, and good reason to know that the vulnerable will pay the price.”
Hamilton writes: “RFRA lets religious citizens rewrite any federal law they don’t like, to their benefit.”
Oral arguments will be heard March 25. The 10th Circuit U.S. Court of Appeals ruled in favor of Hobby Lobby that corporations have the same (or stronger) religious rights as individuals.
However, the 3rd Circuit ruled against a similar challenge by another business that “for-profit, secular corporations cannot engage in religious exercise” and that a business owner’s religious rights do not allow that owner to impose his religion on his business’s employees.”
Conestoga Wood Specialties Corp., East Earl, Pa., is appealing that ruling, which will also be heard March 25.
RFRA is being “permitted to foment culture wars,” Hamilton writes, which violates the separation of powers, Article V and the Establishment Clause of the Constitution.
Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and is the author of God vs. the Gavel: Religion and the Rule of Law.
“We find ourselves in the novel position, for once, of siding with the federal government, in this case Kathleen Sebelius, secretary of Health and Human Services,” commented FFRF Co-President Annie Laurie Gaylor. “Dogma must not be permitted to trump civil liberties in our secular republic.”
Blasphemy laws violate the First Amendment. They promote religion, specifically Christianity, over nonreligion in violation of the Establishment Clause. They prohibit speech in violation of the Free Speech Clause. They violate the guarantees of religious free exercise and free press. In general, blasphemy laws assault the First Amendment’s protection of the freedom of conscience.
Wisconsin Gov. Scott Walker is on the receiving end of a letter of complaint from the Freedom From Religion Foundation in Madison for a religious tweet on his official Facebook and Twitter accounts.
On Sunday, March 16, either Walker or someone empowered to posted the following: "Philippians 4:13" (see screen shots), a bible verse which says, "I can do all things through Christ, who strengthens me."
FFRF, a state-church watchdog with 20,000 members nationwide and about 1,300 in Wisconsin, reminded Walker in a March 18 letter that it's "improper for a state employee, much less for the chief executive officer of the state, to use the machinery of the state of Wisconsin to promote personal religious views."
Co-Presidents Annie Laurie Gaylor and Dan Barker, in FFRF's letter, said Walker's tweet "seems more like a threat, or the utterance of a theocratic dictator, than of a duly elected civil servant."
The letter cites court cases that prohibit government officials from endorsing religion over nonreligion. If a department head or ordinary employee were to use state resources to promote personal beliefs, they would most certainly be admonished.
The question is will Walker be able to get away with it? If so, what might he post next, maybe something from Acts 10 (in which a sheet descends from above, with a voice saying, "Rise, Peter; kill, and eat")? More sustenance and strength for the religious and exclusion for non-Christians.
The letter concludes, "On behalf of our membership, we ask you to immediately delete this religious message from your official gubernatorial Facebook and Twitter. May we hear from you at your earliest convenience?"
On Wednesday, March 12, the Georgia Senate passed H.B. 702, a bill designed to place a Ten Commandments monument within the state capitol building or on its grounds. The bill previously passed the Georgia House. In addition to the Ten Commandments, the proposed granite monument will also contain the preamble to the Georgia Constitution (which states in part that the people of Georgia rely “upon the protection and guidance of Almighty God”) and the “part of the Declaration of Independence which states that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’”
Note: the monument will not include the entirely secular preamble to the U.S. Constitution, as described in the bill’s summary on first reading and as reported incorrectly by numerous news sources. The original version of the bill did call for inclusion of the preamble of the U.S. Constitution, but that was swapped for the portion of the Declaration of Independence that refers to “a Creator.” Yet the sponsor of the bill, Rep. Greg Morris (R-Vidalia), denied, with a straight face, any religious intent behind his proposed monument.
If enacted into law, this bill would be a clear and egregious violation of the separation between state and church. In reaction to the passage of H.B. 702, Erwin Chemerinsky, First Amendment legal scholar and distinguished attorney in the landmark Supreme Court decision Van Orden v. Perry, noted, “the Supreme Court has . . . made clear that putting up new Ten Commandments monuments, when the purpose is so clearly to advance religion, violates the Establishment Clause of the First Amendment.”
The Georgia legislature needs to stop wasting time imagining new, creative ways to memorialize the Christian god and get back to work!
CONTACT GOV. DEAL TODAY!
Please take a moment to contact the governor to voice your opposition to H.B. 702.
For maximum effectiveness, be succinct and polite in messages, and identify yourself as a constituent when relevant (not as a member of FFRF responding to this action alert). For obvious reasons, do not forward this action alert to the governor. Feel free to let friends and colleagues know about this threat. You may wish to send blind copies (using bc in your email) to FFRF at:
You'd be hard-pressed to find many people who like to pay more taxes. That's what makes the "individual mandate" of the Affordable Care Act (Obamacare) so effective. The individual mandate requires anyone who doesn't maintain minimum essential health insurance to pay an additional fee when they file their taxes. The idea behind this tax is that people who opt out of buying health insurance place a burden on the healthcare system, since they aren't paying into it, but still risk getting sick or injured. In other words, those without health insurance increase the cost of health insurance for everyone else and the Affordable Care Act's individual mandate is meant to offset that cost.
While the individual mandate has already been upheld by the Supreme Court as a legitimate exercise of Congress's taxing power, that hasn't stopped religious fringe groups like Christian Scientists from trying to weasel out of paying their share of healthcare costs. On Tuesday, March 11, the House of Representatives passed the "Equitable Access to Care and Health Act" or the "EACH Act" (H.R. 1814), which unnecessarily creates an additional religious exemption to the Affordable Care Act's individual mandate. And by "additional religious exemption" I mean an exemption in addition to the two religious exemptions that already exist.
That's right, Congress already exempted certain religious groups and individuals from having to pay taxes for not maintaining health insurance. It created a religious conscience exemption to the individual mandate that applies to anyone who is "a member of a recognized religious sect or division thereof" if that sect "make[s] provision for their dependent members which [are] reasonable in view of their general level of living," and has been in existence since 1951. While this first religious conscience exemption is limited in scope (and may only apply to the Old Order Amish), the Affordable Care Act also included a second exemption for anyone participating in a "health care sharing ministry."
Health care sharing ministries are religious organizations designed to provide groups of like-minded Christians with a way to pool resources to pay for each other's medical expenses. They are not health insurers, which means that 1) they are horribly under-regulated, 2) often members are under no legal obligation to pay any money into the ministry, and 3) there is no guarantee the ministry will pay for a member's medical expenses. Presumably any Christian with a religious objection to buying insurance, or to receiving medical care, could join one of these ministries to avoid paying the individual mandate without taking on any additional obligations.
Instead of relying on either of the existing religious exemptions to the Affordable Care Act, the EACH Act adds yet another way for religious individuals to avoid paying their fair share into the healthcare system. By allowing certain religious individuals to opt out of maintaining minimum essential health insurance, the EACH Act will interfere with one of the fundamental purposes of the Affordable Care Act: to lower insurance premiums by maximizing the number of participants in the health insurance market. Taxpayers who do not claim this new religious exemption will pay higher health insurance premiums due to uninsured religious freeriders burdening the market.
The EACH Act would specifically allow religious individuals to game the system by swearing that they hold sincerely held religious beliefs against receiving healthcare. They would then be allowed to opt out of paying health insurance, possibly for many years, but nothing prevents them from subsequently receiving care when they do get sick or injured. Preventing sick/injured people from receiving care is out of the question, despite the potentially catastrophic costs for those in the health insurance marketplace. The only practical solution is to deny special treatment to religious objectors in the first place.
The EACH Act is also bad policy because it interferes with other major purposes behind the individual mandate, including protecting the financial security of U.S. families by guarding against the threat that unexpected medical expenses will force them into bankruptcy. While insured families are protected by their policies' out of pocket maximums, the same is not true of those who opt out of health insurance for religious reasons. The Affordable Care Act is also designed, first and foremost, to protect the health of U.S. families by ensuring that they have affordable access to healthcare when they need it. While adult Christian Scientists may be free to claim a religious objection to receiving care, the state still has a duty to ensure the health and safety of minors growing up in religious households. The EACH Act is an abrogation of that duty.
The EACH Act passed the House without ever being vetted in committee, which means that its potential impact on the health insurance marketplace, family financial security, and family health have not been considered. The Senate has now received the bill. Contact your state's senators now with your concerns over religious people receiving special exemptions from paying generally applicable taxes.
You can read Sam's full note Religious Exemptions to the PPACA's Health Insurance Mandate, published in the American Journal of Law and Medicine in 2011.
Also, see FFRF's March 6 action alert (emailed before the House suspended its rules on March 11 to take a voice vote, without substantive debate, on this controversial bill).
The Freedom From Religion Foundation sent a letter of complaint and records request March 11 to Birmingham, Ala., Police Chief A.C. Roper objecting to his organizing and endorsing a Christian ministry called Prayer Force United.
FFRF, a state-church watchdog based in Madison, Wis., has about 20,000 members nationwide and about 180 in Alabama, including a chapter, the Alabama Freethought Association. FFRF also addressed Roper's inclusion of Christian prayer at mandatory department staff meetings and events.
Roper, an ordained minster, leads monthly prayer walks in different Birmingham neighborhoods under the auspices of the Prayer Force United ministry. The prayers are supposed to lower crime. FFRF Staff Attorney Andrew Seidel's letter details Roper's stated belief in the power of prayer and the powerlessness of his police force: "[T]he police are not the answer, never have been, never will be. Jesus said that he's the answer," and "one of the biggest problems [Birmingham is] facing is a lack of godliness."
Seidel explained the law to Roper: "It is unconstitutional for government officials to use their government office and email to advance, promote or endorse one religion over another, or religion over nonreligion. You must keep your religion to yourself when acting in your official capacity as police chief."
Seidel noted that prayer as a crime-fighting technique is ineffectual: "The walks themselves may lower crime simply by having crowds on the streets escorted by police cars with flashing lights, but that is not because of the power of prayer — it is the power of people. Prayer cannot stop violence. Scientific studies show that societies with less prayer have less violence."
FFRF called on the chief to stop forcing prayer on city employees: "Federal courts have found that prayers at government employee meetings constitute illegal government endorsement of religion."
FFRF has created a video with clips from Ropers' sermons and Prayer Force United videos with commentary on their legality. "There was so much video footage, we thought citizens might like to see how the police are abusing their office 'in Jesus' name,' " said Seidel, who put the video together. "It's an opportunity to explain the law and provide compelling examples of exactly how the Constitution is being violated."
Prayer Force videos show Roper appearing while using his title and office to endorse the ministry and "claiming the city of Birmingham for God." Roper also explains that Prayer Force is part of the police department: [I]t's a prayer ministry, it's an intercessory ministry, that, in addition to our officers working every day to make the streets of Birmingham safe, we have a prayer force that's interceding."
FFRF also filed an open records request asking for all records relating to the department's official endorsement of the ministry.
The Freedom From Religion Foundation is protesting an invitation to Pope Francis from Mayor Jim Schmitt to visit Green Bay, Wis., for the express non-secular purpose of making a Virgin Mary pilgrimage.
Schmitt's letter inviting the pope to "make a pilgrimage to the Shrine of Our Lady of Good Help" was written in his official capacity as mayor on City of Green Bay letter. Schmitt signed his worshipful letter "Your servant in Christ."
"You were not elected bishop of Green Bay," noted FFRF Co-Presidents Dan Barker and Annie Laurie Gaylor in a March 10 letter to Schmitt. The pair told Schmitt his action is a "shocking breach of your civil and secular duties as mayor." They note a government official cannot constitutionally promote one religion over another, or religion over non-religion.
Schmitt's missive to the pope extols in excited tones "the events, apparitions and locutions" occurring in 1859 that "exhibit the substance of supernatural character," involving "the first and only Blessed Virgin Mary apparition approved by the Catholic Church in the United States."
While noting Schmitt is "welcome to personally believe" in the supernatural sighting of the Virgin Mary a century and a half ago, he is "not free to use your civic office to promote your personal (and highly embarrassing) religious beliefs." FFRF noted that most Green Bay citizens are either non-Catholic or non-believing, and would not "consider it the business of the mayor to promote a 'pilgrimage' to a Catholic shrine."
Schmitt compounded the violation, FFRF says, in starting a petition, "Pope to Green Bay," at a website registered under his name.
They warned that the invitation is "fiscally reckless, given the exorbitant costs of hosting a pope, costs which invariably end up being borne by taxpayers," citing riots and rallies against public funding of recent pope visits in U.K., Spain and Brazil.
"It's bad enough to put up with the Catholic church's harmful and antediluvian doctrines — against safe and legal abortion, contraception, gay rights, same sex marriage, the equal rights and ordination of women as priests — without U.S. citizens having to literally pay to put up the pope," FFRF added.
"The shameful and unremitting scandal of sexual abuse of minors within the ranks of the Catholic clergy and even more scandalous covers-up by its highest ranking officials have tarnished dioceses through the state of Wisconsin, and left a devastated trail of victims and their families."
FFRF prevailed, after filing a federal lawsuit, in forcing Mayor Schmitt and the City of Green Bay to stop placing a nativity scene atop the entrance to City Hall in 2008.
FFRF Staff Attorney Patrick Elliott also made an open records request asking for city documents and communications about the proposed visit.