Michael Newdow has made quite a name for himself trying to eradicate any mention of God in the public square. He’s brought–and lost–lawsuits challenging the phrases “Under God” in the Pledge of Allegiance (three times), “In God We Trust” on our currency, and “So Help Me God” in the President’s inaugural oath.
Now he is going after pastors and the IRS.
Newdow, along with the Freedom From Religion Foundation, has filed a federal lawsuit challenging the constitutionality of Sections 107 and 265(a)(6) of the Revenue Code, claiming that they violate the Establishment Clause of the First Amendment.
Section 107 allows churches to provide pastors with housing (or a housing allowance) without requiring the pastor to pay additional federal income tax. Section 265(a)(6) allows pastors to deduct home mortgage interest payments and property tax payments from their taxable income–deductions given to all taxpayers. Newdow is also challenging the parallel state tax code provisions.
Such exemptions have been common throughout American history. Congress has always understood the First Amendment to authorize property tax exemption for religious groups. And it was natural for this exemption to extend to parsonages, or church-provided housing. A parsonage has generally been viewed as more than just a pastor’s residence; it is an extension of the church. So it’s no surprise that shortly after the modern federal income tax was established, a federal income tax exemption for parsonages appeared in the Revenue Code. That exemption has now been in place for almost 90 years.
If this exemption is eliminated, as Newdow wants, the financial consequences for churches and pastors would be significant. One past congressional estimate concluded that American clergy would see their taxes increase by $2.3 billion over a five-year period.
Is Newdow’s lawsuit likely to be successful? It’s doubtful. In a 1970 case, Walz v. Tax Commission, the U.S. Supreme Court rejected an Establishment Clause challenge to a New York law granting property tax exemption to religious organizations. It concluded that there “is no genuine nexus between tax exemption and establishment of religion” because the exemption “restricts the fiscal relationship between church and state,” and eliminating it would expand governmental involvement in churches–which the First Amendment is designed to protect churches against. The same reasoning applies equally to this case. So Walz should dictate its outcome.
Further weakening Newdow’s claim is the fact that pastors are not the only ones who receive these types of tax benefits. Employees who receive housing from non-religious employers get similar tax benefits under Section 119 of the Internal Code. So Section 107 simply puts pastors on the same footing. And, as mentioned above, Section 265(a)(6) merely ensures that pastors get to deduct their home mortgage interest and property tax payments from their taxable income the same way that most other taxpayers do.
In short, courts have consistently rebuffed Newdow’s efforts at eradicating religion from the public square, and I expect this case to be no different.
Please leave a comment below to share your thoughts or follow us on Facebook to join the conversation. http://www.facebook.com/SpeakUpChurch