Chris Bergin over at Tax Analysts has a good point about the exclusion from income for the rental value of the minister's residence--it makes no sense and has no place in the tax code. See Bergin, What we need is a Godless tax code, Tax Analysts (Aug. 29, 2013) [hat tip--Roberta Mann, Oregon]
His riff is based on recent stories in the Washington Post (here, and here) that the head of the Freedom from Religion Foundation has been given a housing allowance and is litigating over the fact that she cannot exclude the rental value like a "minister of the gospel" may do under section 107 of the Internal Revenue Code.
As Bergin notes, this isn't really the kind of suit that the government likes to get involved in--it's a lose-lose situation for the government.
- If the government argues to uphold the special exclusion available only to religious ministers, it seems to be arguing against a core principle of the Constitution--the idea that freedom of religion in the First Amendment ensures the separation of church and state and permits every American to choose to be free to be religious or free "from" religion: religion will not be imposed on us nor its support demanded of us.
- if the government argues to reject the special exclusion available only to religious ministers, which acts as a tax subsidy to religious institutions and individuals, the Christian right will ponce on this as further evidence of what it sees as a "war on Christianity" (sometimes cast as a war on religion itself). Anytime that a privileged group that has received a privilege over a long period of time faces the possibility that it will lose that privilege as societyh recognizes the basic unfairness of it, the privileged group will tend to claim that it is society which is attacking them, rather than that they have been 'attacking' society for decades due to the preference that they claimed that others were not entitled to.
[Aside: Supreme Court jurisprudence has, unfortunately, not understood the latter "freedom from" part of religious freedom very well, perhaps because so many on the Court are practicing members of traditional religions that lobby strongly for their traditional privileges. Such things as Nativity Scenes on public property are allowed (so long as they are accompanied by Christmas trees, which the Justices somehow concluded were just holiday symbols and had nothing to do with, well, Christmas). And the Supreme Court recently extended its "ministerial exception" to discrimination laws to allow a broad category of positions to be hired and fired based on the religious institution's "religious freedom" to enforce its institutional religious principles--clearly something far removed from, and in fact antithetical to, individual Americans' freedom of religion. Some day the Supreme Court will see the light on this issue--as Americans' affiliations with traditional religious institutions continue to wane and agnostics, atheists and those merely spiritually inclined but unaffiliated with any religious institution claim, with increasing ardor, their civil rights not to support religious institutions and not to have religious institutions discriminate against them.]
So, Bergin notes, the government did what probably seemed like a reasonable thing to avoid a lose-lose situation.
Now to the funny part. The government is arguing that the leader of an atheist group can qualify for a parsonage exemption. (I believe this is called the "please go away defense.") It seems belief in a deity is not a requirement to be a minister. But the taxpayer’s point is that she doesn’t want the exemption, for her or anyone else. And it’s probably a pretty good guess that she is not interested in promoting the gospel. Id.
Of course, right-wing pundits went berserk (see "Insane" headline, below). But this question--can the leader of an atheist organization be a "minister" for purposes of this provision (or for other situations where we seem to favor religion over non-religion under our current rules)--is an important one. Because it makes us realize that defining something as religion is not obviously easy. That difficulty was what gave rise to the scientology dispute and the disputes over Santeria's slaughter of animals. It is the reason that we seldom see IRS cases challenging a church exemption, even when churches defy the law to engage in overtly political campaigning. And of course, almost anyone can proclaim themselves to be following a "new" religion with beliefs quite contrary to mainstream religions. As the Justice Department points out in connection with the FFRF suit, Buddhism and other systems of philosophy are treated by the government as religions, even though they are non-theistic. The only alternatives seem to be (i) to recognize anything that has various aspects of religion (including perhaps most importantly a dedication to a philosophical perspective) as a religion eligible for the special tax provision OR (ii) to eliminate any special tax preferences for anything religious. Given that dilemma, Bergin's conclusion that we should just take God out of tax is one that I can fully embrace.
The tax code’s job should be to collect revenue, not to provide tax breaks for religions, non-religions, or libertarians, who seem to think of themselves sort of in the middle there. Years ago, there was basically a war fought over whether Scientology was a religion. Frankly, I don’t care whether Scientology is or isn’t a religion. I respect anyone’s right to believe in it. But why should the tax law care?
It would appear to be a good move to get rid of section 107 altogether--simplifying the tax code, removing an unnecessary tax expenditure that gives religious ministers a preference unavailable to anyone else, getting rid of an anomaly of tax code support for religion over non-religion that conflicts directly with the Constitutional religious freedom right for individuals, and saving the government from having to figure out whether some set of personal beliefs is or is not a religion.