The legal challenge to the constitutionality of the ministerial housing allowance is over—for now.
The Freedom From Religion Foundation (FFRF) announced June 14 it would not appeal to the U.S. Supreme Court its March judicial loss, thus concluding its latest effort to gain nullification of the allowance that is part of a 65-year-old federal law. The FFRF was not confident of its chances of winning its appeal given the current make-up of the high court, according to its news release.
A 1954 federal law permits churches to designate part of eligible ministers’ income as a housing allowance, enabling “ministers of the Gospel” to exclude for federal income tax purposes a portion or all of their gross income.
In March, a three-judge panel of the Seventh Circuit Court of Appeals in Chicago ruled unanimously the clergy allowance does not violate the First Amendment clause that prohibits government establishment of religion.
GuideStone Financial Resources—the Southern Baptist Convention’s health and financial benefits entity—expressed gratitude for the decision.
“We are thankful for so many, including the U.S. Justice Department, that so ably argued on behalf of the constitutionality of the minister’s housing allowance,” said GuideStone President O.S. Hawkins. “It is our belief that had the case made it to the Supreme Court that the housing allowance would have been upheld as constitutional. Regardless, pastors and churches needn’t worry in the near-term about the housing allowance.”
In its March opinion, the Seventh Circuit panel agreed the housing allowance is constitutional under the Supreme Court’s church-state precedents, including the three-part Lemon test. That standard, named after the 1971 Lemon v. Kurtzman opinion, says a law must have a secular purpose, not primarily promote or restrict religion, and “not foster an excessive entanglement with religion,” in order to be considered constitutional.
In considering an appeal, the FFRF, a Wisconsin-based atheist organization, said it decided the Supreme Court’s present composition—which consists of five apparent conservatives—would not be favorable to its case.
“After ‘counting heads,’ we concluded that any decision from the current court would put the kibosh on challenging the housing allowance for several generations.”