Gaylor v. Mnuchin
I attended a very stimulating seminar Wednesday, October 17th, at the Loyola University School of Law, regarding an upcoming hearing (next Wednesday) in the 7th Circuit Court of Appeals regarding a lower-court decision concerning the tax-exempt housing allowances often granted to ministers in lieu of living in a “parsonage.”
The seminar was organized by Samuel D. Brunson, professor at Loyola who has taken an interest in the case, and whose recent book, The IRS and Religion: Accommodating Religious Practice in U.S. Tax Law (Cambridge University Press, 2018) I’m currently reading on my Kindle – it’s an excellent read. He was joined by another Chicago law professor, Anthony M. Kreis of Chicago-Kent College of Law. The questions from lawyers, law-school students, and other law professors was stimulating.
Some of his lecture today came straight out of chapter 5 (“Housing Clergy”) in the book. It concerns a lawsuit, brought originally in 2013 by the Freedom From Religion Foundation in Wisconsin, which was decided in their favor by Federal judge Barbara Crabb (a Carter appointee who gained some notoriety a few years ago for another decision upholding gay marriage in Wisconsin), but was then reversed and dismissed on appeal by the 7th Circuit Court of Appeals a few years ago. FFRF made some changes regarding their standing to sue as suggested by the 7th Circuit, and again prevailed in Judge Crabb’s court, so here they are again, back at the appellate level. However decided this time, the issue seems likely to rise to the Supreme Court at some point.
The Constitutional issues are complex, and probably will take a boxcar of lawyers to sort out, but here is one layman’s understanding of some of the issues. Basically, the question concerns whether allowing ministers, but not other citizens generally, to exempt a designated portion of their compensation from taxation violates the religion clauses of First Amendment to the US Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
Some of the relevant issues which surfaced in the session include:
— The “standing” issue (whether FFRF has suffered damages or otherwise has “standing” to sue the IRS) is probably not significant this time since FFRF seems to have made the changes suggested by the 7th Circuit in the original case. Whether these would be recognized by SCOTUS if the case rises to that level is another question.
–Legislative history (see Chapter 5 and of professor Brunson’s book for details): while the history of how the housing allowance came to be and has been amended in ad hoc fashion almost from the beginning of the IRS itself is fascinating, the speakers seemed to feel that legislative history is less relevant in recent court decisions and may not play a significant role in the decision. “But we’ll see” was also a repetitive phrase during the presentations. The comments of Rep. Peter Mack in introducing HR 4275 are relevant in revealing an anti-discriminatory motive behind the legislation, but also portrayed the feelings of many in the 1950’s regarding the role of religion in anti-communist crusades. Prof. Brunson has blogged about this and other related issues at https://bycommonconsent.com/…/when-religious-tax-accommoda…/
–The “Lemon” test: Derived from a landmark 1971 SCOTUS decision (Lemon v. Kurtzman), creating a triple-pronged set of criteria to adjudicate “separation of church and state.” A statute (1) must have a secular legislative intent, (2) must neither advance nor inhibit religion, (3) must not involve “excessive government entanglement” with religion. If any of the “prongs” are violated, the statute can be declared unconstitutional. Often considered vague and cumbersome — what’s “excessive?” plus most good lawyers can probably find some secular (or religious) “intent” in many statutes. The sense of the room seemed to be that Gaylor v. Mnuchin might be the case that allows SCOTUS to replace Lemon with something more viable, or maybe just scrap it.
–Internal Revenue Code Section 107 (1) and 107 (2) – one of the most interesting features of this case is that, as I understand it, the suit challenges only IRC Section (2) which exempts a minister’s housing allowance from taxation. Section 107 (1) which allows a parsonage owned by a church and provided for the minister’s housing is not challenged in the present case (though it could be in the future if a group with standing were to bring such a challenge). Does this raise the possibility that churches (which for their convenience have largely divested themselves of parsonages in recent decades) might get back into the “parsonage business” again? “We’ll see”
— Churches of Christ and this issue (or, “Robert Baty, George HW Bush, Omar Burleson, and Pepperdine University’s ‘Basketball ministers’”). Though this did not arise in the seminar, the “backstory” to this case is intriguing. About 20 years ago, I became acquainted online with a fellow Christian, Robert Baty, who had taken an intense interest in these issues. An IRS Appeals officer (now retired), Robert was disturbed at some of the arguments made in support of legislation and/or IRS ruling 70-549 created at the behest of then-Congressman George HW Bush of Houston, and fellow Congressman Omar Burleson of Abilene, to allow colleges such as Abilene Christian University and Pepperdine University in Malibu, CA, to allow staff personnel (including athletic coaches) to claim tax-exempt housing allowances since the colleges portrayed themselves as “integral agencies of the church” – as several religious colleges do. Attempting to find Rep. Burleson’s papers for enlightenment on the issue, we discovered that they had been donated to ACU (where Burleson was an alum) but were sealed or embargoed until well into the 21st century. For more information, see the Forbes blogs of Peter J. Reilly, who has also turned a spotlight on these issues (see, for example, https://www.forbes.com/…/john-oliver-should-not-blame-irs…/… ).
(Full disclosure: like most ministers, I have taken advantage of the legal provisions for housing allowance, and in my work with one church, occupied a church-owned house. My arrangements, including years as a bi-vocational minister have survived IRS scrutiny through two audits. The case may possibly have future implications as well for other similar arrangements (university presidents and deans who are often provided housing, military housing, housing arrangements for US citizens living abroad, and other cases which may be similar though not exactly parallel).
This is an interesting case about which legal minds can reasonably disagree (as with many decisions which often have multiple dissenting opinions). I plan to be at the Dirksen Federal Building next week to hear the oral arguments before the 7th Circuit. Stay tuned.
Thanks, Kent — well done!
NEW MUSIC IS NOW BECOMING AVAILABLE TO THE AVERAGE CHURCH AT AN UNPRECEDENTED PACE. Simultaneously, music literacy is declining. Church leaders are often ill-equipped to discern between the various sources of music that may be infiltrating the church. Worship leaders may have competing agendas regarding worship styles, new songs to introduce, and favorite arrangements. Composers and song writers may now publish or self-publish instantaneously and your church can download digital music to print and project as well as play audibly. All of this can lead to confusion, impeded worship, and in the worst cases, division. The days of buying a hymnal and coasting for fifty years are over. Church leaders must become educated on trends and equip themselves to gracefully guide the church to filter the noise and select the best worship resources for their church culture and theology. This article attempts to aid toward that end, though it is…
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I cross-posted to my Facebook page a few months ago when it first appeared — but this is worth repeating here — it’s from the blog marc5solas.
We all know them, the kids who were raised in church. They were stars of the youth group. They maybe even sang in the praise band or led worship. And then… they graduate from High School and they leave church. What happened?
It seems to happen so often that I wanted to do some digging; To talk to these kids and get some honest answers. I work in a major college town with a large number of 20-somethings. Nearly all of them were raised in very typical evangelical churches. Nearly all of them have left the church with no intention of returning. I spend a lot of time with them and it takes very little to get them to vent, and I’m happy to listen. So, after lots of hours spent in coffee shops and after buying a few lunches, here are the most common thoughts taken from dozens of conversations. I hope some of them make you angry. Not at the message, but at the failure of our pragmatic replacement of the gospel of the cross with an Americanized gospel of glory. This isn’t a negative “beat up on the church” post. I love the church, and I want to see American evangelicalism return to the gospel of repentance and faith in christ for the forgiveness of sins; not just as something on our “what we believe” page on our website, but as the core of what we preach from our pulpits to our children, our youth, and our adults.
The facts:
The statistics are jaw-droppingly horrific: 70% of youth stop attending church when they graduate from High School. Nearly a decade later, about half return to church.
Half.
Let that sink in.
There’s no easy way to say this: The American Evangelical church has lost, is losing, and will almost certainly continue to lose OUR YOUTH.
For all the talk of “our greatest resource”, “our treasure”, and the multi-million dollar Dave and Buster’s/Starbucks knockoffs we build and fill with black walls and wailing rock bands… the church has failed them.
Miserably.
The Top 10 Reasons We’re Losing our Youth:
10. The Church is “Relevant”:
You didn’t misread that, I didn’t say irrelevant, I said RELEVANT. We’ve taken a historic, 2,000 year old faith, dressed it in plaid and skinny jeans and tried to sell it as “cool” to our kids. It’s not cool. It’s not modern. What we’re packaging is a cheap knockoff of the world we’re called to evangelize.
As the quote says, “When the ship is in the ocean, everything’s fine. When the ocean gets into the ship, you’re in trouble.”
I’m not ranting about “worldliness” as some pietistic bogeyman, I’m talking about the fact that we yawn at a 5-minute biblical text, but almost trip over ourselves fawning over a minor celebrity or athlete who makes any vague reference to being a Christian.
We’re like a fawning wanna-be just hoping the world will think we’re cool too, you know, just like you guys!
Our kids meet the real world and our “look, we’re cool like you” posing is mocked. In our effort to be “like them” we’ve become less of who we actually are. The middle-aged pastor trying to look like his 20-something audience isn’t relevant. Dress him up in skinny jeans and hand him a latte, it doesn’t matter. It’s not relevant, It’s comically cliché. The minute you aim to be “authentic”, you’re no longer authentic!
9. They never attended church to begin with:
From a Noah’s Ark themed nursery, to jumbotron summer-campish kids church, to pizza parties and rock concerts, many evangelical youth have been coddled in a not-quite-church, but not-quite-world hothouse. They’ve never sat on a pew between a set of new parents with a fussy baby and a senior citizen on an oxygen tank. They don’t see the full timeline of the gospel for every season of life. Instead, we’ve dumbed down the message, pumped up the volume and act surprised when…
8. They get smart:
It’s not that our students “got smarter” when they left home, rather someone actually treated them as intelligent. Rather than dumbing down the message, the agnostics and atheists treat our youth as intelligent and challenge their intellect with “deep thoughts” of question and doubt. Many of these “doubts” have been answered, in great depth, over the centuries of our faith. However….
7. You sent them out unarmed:
Let’s just be honest, most of our churches are sending youth into the world embarrassingly ignorant of our faith. How could we not? We’ve jettisoned catechesis, sold them on “deeds not creeds” and encouraged them to start the quest to find “God’s plan for their life”. Yes, I know your church has a “What we believe” page, but is that actually being taught and reinforced from the pulpit? I’ve met evangelical church leaders (“Pastors”) who didn’t know the difference between justification and sanctification. I’ve met megachurch board members who didn’t understand the atonement. When we chose leaders based upon their ability to draw and lead rather than to accurately teach the faith? Well, we don’t teach the faith. Surprised? And instead of the orthodox, historic faith…..
6. You gave them hand-me-downs
You’ve tried your best to pass along the internal/subjective faith that you “feel”. You really, really, really want them to “feel” it too. But we’ve never been called to evangelize our feelings. You can’t hand down this type of subjective faith. With nothing solid to hang their faith upon, with no historic creed to tie them to centuries of history, without the physical elements of bread, wine, and water, their faith is in their subjective feelings, and when faced with other ways to “feel” uplifted at college, the church loses out to things with much greater appeal to our human nature. And they find it in…
5. Community
Have you noticed this word is *everywhere* in the church since the seeker-sensitive and church growth movements came onto the scene? (There’s a reason and a driving philosophy behind it which is outside of the scope of this blog.) When our kids leave home, they leave the manufactured community they’ve lived in for nearly their entire life. With their faith as something they “do” in community, they soon find that they can experience this “life change” and “life improvement” in “community” in many different contexts. Mix this with a subjective, pragmatic faith and the 100th pizza party at the local big-box church doesn’t compete against the easier, more naturally appealing choices in other “communities”. So, they left the church and….
4. They found better feelings:
Rather than an external, objective, historical faith, we’ve given our youth an internal, subjective faith. The evangelical church isn’t catechizing or teaching our kids the fundamentals of the faith, we’re simply encouraging them to “be nice” and “love Jesus”. When they leave home, they realize that they can be “spiritually fulfilled” and get the same subjective self-improvement principles (and warm-fuzzies) from the latest life-coach or from spending time with friends or volunteering at a shelter. And they can be truly authentic, and they jump at the chance because…
3. They got tired of pretending:
In the “best life now”, “Every day a Friday” world of evangelicals, there’s little room for depression, or struggle, or doubt. Turn that frown upside down, or move along. Kids who are fed a stead diet of sermons aimed at removing anything (or anyone) who doesn’t pragmatically serve “God’s great plan for your life” has forced them to smile and, as the old song encouraged them be “hap-hap-happy all the time”. Our kids are smart, often much smarter than we give them credit for. So they trumpet the message I hear a lot from these kids. “The church is full of hypocrites”. Why? Even though they have never been given the categories of law and gospel…
2. They know the truth:
They can’t do it. They know it. All that “be nice” moralism they’ve been taught? The bible has a word for it: Law. And that’s what we’ve fed them, undiluted, since we dropped them off at the Noah’s Ark playland: Do/Don’t Do. As they get older it becomes “Good Kids do/don’t” and as adults “Do this for a better life”. The gospel appears briefly as another “do” to “get saved.” But their diet is Law, and scripture tells us that the law condemns us. So that smiling, upbeat “Love God and Love People” vision statement? Yeah, you’ve just condemned the youth with it. Nice, huh? They either think that they’re “good people” since they don’t “do” any of the stuff their denomination teaches against (drink, smoke, dance, watch R rated movies), or they realize that they don’t meet Jesus own words of what is required. There’s no rest in this law, only a treadmill of works they know they aren’t able to meet. So, either way, they walk away from the church because…
1. They don’t need it:
Our kids are smart. They picked up on the message we unwittingly taught. If church is simply a place to learn life-application principals to achieve a better life in community… you don’t need a crucified Jesus for that. Why would they get up early on a Sunday and watch a cheap knockoff of the entertainment venue they went to the night before? The middle-aged pastor trying desperately to be “relevant” to them would be a comical cliché if the effect weren’t so devastating. As we jettisoned the gospel, our students are never hit with the full impact of the law, their sin before God, and their desperate need for the atoning work of Christ. Now THAT is relevant, THAT is authentic, and THAT is something the world cannot offer.
We’ve traded a historic, objective, faithful gospel based on God’s graciousness toward us for a modern, subjective, pragmatic gospel based upon achieving our goal by following life strategies. Rather than being faithful to the foolish simplicity of the gospel of the cross we’ve set our goal on being “successful” in growing crowds with this gospel of glory. This new gospel saves no one. Our kids can check all of these boxes with any manner of self-help, life-coach, or simply self-designed spiritualism… and they can do it more pragmatically successfully, and in more relevant community. They leave because given the choice, with the very message we’ve taught them, it’s the smarter choice.
Our kids leave because we have failed to deliver to them the faith “delivered once for all” to the church. I wish it wasn’t a given, but when I present law and gospel to these kids, the response is the same every time: “I’ve never heard that.” I’m not against entertaining our youth, or even jumbotrons, or pizza parties (though I probably am against middle aged guys trying to wear skinny jeans to be “relevant).. it’s just that the one thing, the MAIN thing we’ve been tasked with? We’re failing. We’ve failed God and we’ve failed our kids. Don’t let another kid walk out the door without being confronted with the full weight of the law, and the full freedom in the gospel.
Marc
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