By Andrew L. Seidel
Director of Strategic Response
Freedom From Religion Foundation
“If the law is against you, talk about the evidence . . . If the evidence is against you, talk about the law, and, since you ask me, if the law and the evidence are both against you, then pound on the table and yell like hell.” ~Carl Sandburg, The People, Yes (1936) Poem #69
Names. Two hundred and four pages of names. In minuscule, 11-point font that violates federal court rules. Those 204 pages filled with 8,899 names are attached to a brief submitted against one of the Freedom From Religion Foundation’s most important legal challenges — a challenge that seemingly has every church and minister in the nation, no matter how conservative or liberal, weighing in against us.
The substance of this strange brief, the actual legal argument, clocks in at just over 11 pages. Thin on the law, it puts on a show of brute strength, seeking to wow the Seventh Circuit U.S. Court of Appeals with numbers instead of substance. The Alliance Defending Freedom, which authored this anything-but-brief, allowed any self-proclaimed “minister” to sign on to the document. Whether or not ADF checked or in any way vetted those hangers-on is not clear, but it seems unlikely given that they simply had people fill out a webform. In fact, it looks like ADF simply copied and pasted a spreadsheet into the document it submitted to the court.
There’s an old legal adage that’s been reworked many times over. When you don’t have the law, argue the facts. When you don’t have the facts, argue the law. In none of its permutations does the quote end: “and when you’ve got nothing, just list off a bunch of names.” But that’s ADF’s brief. It is the longest legal brief I’ve ever seen and is neither brief, nor truly legal. It’s a cudgel, meant to stun the judges into ignoring the law.
The law that FFRF is challenging and that ADF is defending is pretty simple. Section 107(2) of the Internal Revenue Code allows churches to designate portions of salary to “ministers of the gospel” as a housing allowance. That income is then excluded from the minister’s personal income. So if the church pays its minister $100,000 and designates $20,000 of that a housing allowance, the minister only pays income tax on $80,000. That means taxpayers are basically subsidizing the mansions of mega-preachers like Kenneth Copeland or Scott Furtick, the subject of the video below. It’s nearly a billion dollar tax break for “ministers of the gospel.”
That phrase—“minister of the gospel”—so obviously meant to privilege religious leaders, made the district court’s decision in favor of FFRF easy: “Although defendants try to characterize § 107(2) as an effort by Congress to treat ministers fairly and avoid religious entanglement, the plain language of the statute, its legislative history and its operation in practice all demonstrate a preference for ministers over secular employees.”
For nearly a decade, FFRF has been fighting a lonely battle against this unconstitutional privilege the government has bestowed on religion. Because the law is truly indefensible, the government has scrambled to end every FFRF challenge to it—FFRF is now on permutation number 3—on procedural grounds. The goal has been to avoid a decision on the merits of the case. But supporters of the housing allowance appear to have run out of procedural dodges and it looks like the Seventh Circuit will soon have to decide the case on the merits.
That’s where the ADF’s voluminous brief comes in. The group, along with many others, mostly religious, filed an amicus brief in the case. That is, it filed a “friend of the court” brief. According to the Supreme Court, amicus briefs are meant to “bring to the attention of the Court relevant matter not already brought to its attention by the parties… .” That is, the briefs should have new, valuable argumentation or bring a unique perspective to the case, one the parties have not considered or litigated.
Amicus briefs should not rehash the arguments already made, because, again in the words of the Supreme Court, a brief like that “simply burdens the staff and facilities of the Court and its filing is not favored.”
The ADF’s 200+ page brief encapsulates all the amicus briefs filed to protect the parsonage allowance. None of them raises new arguments for the court. Instead, they restate, recycle, and reuse the central arguments—they just do it over and over again. Like the ADF brief, they rely on volume over substance. Briefs came from nearly every point on the Judeo-Christian spectrum, even the most liberal end, including the Unitarian Universalist Association and the United Church of Christ.
The stack of briefs is meant to show that there are countless houses of worship and leaders of religious congregations who want to keep this lucrative income tax break.
In a way, these briefs actually prove FFRF’s point that it and its leaders have been injured by being denied the same housing allowance offered to ministers of the gospel. By inundating the judges with briefs, churches and religious legal groups prove that this provision of the tax code is a huge financial benefit only given to religious leaders. That’s discrimination. That’s religious privilege. And that means it’s unconstitutional.
FFRF is committed to overturning anything that violates state-church separation, no matter how popular or valuable. We’ll do so even if we are standing alone, armed only with the Constitution, against a religious Goliath.
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