The 7th Circuit Court of Appeals heard the appeal of a case challenging the parsonage allowance that lets religious ministers pay far lower taxes than non-ministers. The case was filed by Dan Barker and Annie Laurie Gaylor of the Freedom From Religion Foundation. Courthouse News Service reports on the oral argument:
The Freedom from Religion Foundation is the lead plaintiff in the challenge against the secretary of the Treasury and the commissioner of the Internal Revenue Service.
It told the 7th Circuit in its brief that Section 107(2) “undeniably confers a significant tax benefit upon religious clergy that is not available to nonclergy taxpayers.”
“Only ministers can exclude cash housing allowances, a result that is patently unfair,” the group’s attorney Richard Bolton with Boardman and Clark wrote.
He went directly to the religious issue at the 7th Circuit hearing Tuesday.
“If you’ve got a benefit that’s widely available for which religion is only one component, then you’re OK,” Bolton said. Benefits solely based on religion are on the other hand unconstitutional.Indeed the plaintiffs’ brief says: “whereas even the Bible commands citizens to ‘render on to Caesar the things which are Caesar’s,’ the government simply dismisses basic principles of neutrality and fairness when it comes to clergy taxation.”
There was, of course, an argument over standing:
In a discussion of standing, Justice Department attorney Judith Hagley said that the plaintiffs cannot challenge a tax benefit that has not been personally denied to them, as opposed to being only generally unavailable.
“Taxpayers do not have standing to litigate others’ tax liability,” Hagley said.
Even under the incredibly ludicrous standing doctrine the Supreme Court has foisted on the country, this seems like a losing argument. They aren’t litigating others’ tax liability, they are litigating their own. If the government gives a tax benefit to one group but not to others who are similarly situated, there is a clear Equal Protection Clause issue (whether that’s a winning issue is a separate question, but to dismiss on standing grounds would be absurd).