The Minister’s Housing Allowance Is Under Attack
And It’s Long Overdue …
By Gerald R. Thompson
The Minister’s Housing Allowance (MHA) provided for in §107 of the Internal Revenue Code of 1986 (26. U.S.C. §107) is under attack, and may fall. Gaynor v. Mnuchin and Gaynor v. Peecher, in the 7th Circuit Court of Appeals. It’s about time.
Intervening Defendants (The Becket Fund for Religious Liberty, on behalf of six religious clients) argue that the MHA has a long-standing tradition in America (which it does), the MHA complies with various key rulings of the U.S. Supreme Court (chiefly Walz, Texas Monthly, and Lemon), and that the MHA does not benefit solely religious persons because it is part of a larger statutory scheme to exempt convenience-of-the-employer benefits (including housing) from income. Oddly, they also argue that §107, which opens with the words, “In the case of a minister of the gospel,” promotes equality among religions and reduces entanglement between church and state. Go figure.
An Amicus brief has been filed by the Evangelical Council for Financial Accountability (ECFA), the Christian Legal Society (CLS), the National Association of Evangelicals (NAE) and four churches or denominations. Instead of pressing any legal arguments, Amici merely argue that “basic data show that the housing-allowance exclusion is deeply embedded in national life and invalidating it would significantly disrupt ministers and congregations.” Their words, not mine. Totally useless.
First of all, let us cast aside any notion that Walz, Texas Monthly, and Lemon comply with the laws of nature and nature’s God. Lemon in particular is so ghastly that anyone who calls himself/herself a “Christian lawyer” should be ashamed to plead its validity. This has been eloquently shown by Mr. Morgan in his essay on Unalienable Rights, Equality and the Free Exercise of Religion. These cases represent made-up doctrines invented by the Court, having no foundation in either lonang or the Constitution. Whether §107 complies with these cases or not, it tells us nothing.
Forget all about secular purpose and religious entanglement. The real question here is not whether Congress or the Court can uphold an historic tradition, or whether a tax exemption is not the same thing as a transfer of revenue (i.e., a subsidy). The principle question is this: given that the statute at issue applies solely to ministers of the gospel, do either Congress or the Court have the authority to decide who a minister of the gospel is? It does no good to kick the football downfield and say, “we won’t determine that, we’ll just let churches decide for themselves.” The question still remains, do either Congress or the Court have the authority to decide what a church is?
The Becket Fund, ECFA, CLS and NAE all assume the answer to that last question is Yes. But the correct answer, under the laws of nature and nature’s God, is No. Go ahead and review my article on the Constitutional Authority to Define A “Church.”. The whole point of the article is that there is no constitutional authority to make, recognize, or certify what a church is or is not.
In one of the greatest legal ironies of all time, modern “Christian lawyers” believe that government cannot define what religion is, because it is up to each individual to define that for himself. At the same time, they concede that government can define what a church is, in order to grant special exemptions and privileges. But the laws of nature and nature’s God provide for exactly the opposite. It’s religion that we can define, as the objectively determined duties owed to God. But government cannot define what a church is, because it is the exclusive right of the people, not their government, to define the forms of institutions which administer public worship and other bona fide religious activities.
Consider also that the MHA is simply, directly and unabashedly a holdover from the laws of England, and the set of special privileges extended to religious persons under the banner of benefit of clergy. Just search Blackstone’s Commentaries on the Laws of England for the phrase “benefit of clergy” and see how often it pops up. Special legal privileges afforded to members of the clergy are an attribute of state established religion, which of course England clearly had, and which America was supposed to have eliminated.
This is not a good thing. Yes, I know the founders were slow to embrace all of the legal implications of the First Amendment to the Constitution, just as they were slow to realize all the legal implications of all men are created equal. That just recognizes the historical inertia of any large society, if you will, which resists change. But it is no defense to argue the inertia (i.e., the long-standing tradition) of something as a reason to keep it around. The worst errors are the oldest. Tear down those high places (i.e., places of idolatry) and don’t stop until you finish the task. 2 Kings 15:34-35.
As I pointed out in Five Biblical Principles of Church Government, there are no holy men, or spiritual persons, except what all Christians have in common. It is therefore fundamentally unlawful for the MHA to single out (as it does) certain persons (“ministers of the gospel”) as religious persons, treating them differently from all other persons.
Religious freedom, and the duties we owe the Creator (i.e., religious duties) are common to all people. The religious duties owed to God by ministers are no greater, nor more sacred, and are no more cognizable by the law, than the religious duties of anyone else. You do not gain more religious freedom merely because you choose to work in a religious endeavor. Yet, that is the implicit premise of the MHA. Fundamentally, this violates principles of equality, that the law should be no respecter of persons. Deut. 16:9.
One can only hope the MHA will fall, if only for the reason that it may be what it takes to shake the clergy into a state of awareness of the true extent of civil tyranny over the people today. It’s about darn time they suffered the privations of ordinary people. I don’t relish the financial burden it will place on clergy, but I see a great deal of possible good coming from the imposition – if it changes their attitude about needing to speak to the legal and governmental issues of the day.
Of course, if the MHA falls, what is next, but special exemptions from Social Security, and eventually religious tax exemption itself. Yes, it has every indication of being the tip of the iceberg, but that’s a good thing for biblical truth. Let them suffer for their faith along with the rest of us – but in truth that burden will merely be what all believers have in common. Maybe they will then see the light, that GOD IS LAW and GOD IS GOVERNMENT, and finally take heart to fulfill the Great Commission to teach all nations the commandments of God.
Of course, it’s just as likely they will feel specially persecuted (the wrong response) and launch an intense fundraising campaign to fight the forces of evil, AS IF clergy have a God-given right to be treated differently by the law from all other believers. Which response do you think is more likely?