Housing Allowance Update: Judge Grants Right to Intervene

By order dated January 19, 2017, Judge James Peterson of the federal district court for

By order dated January 19, 2017, Judge James Peterson of the federal district court for the Western District of Wisconsin granted a request by several parties to “intervene” in the pending challenge by the Freedom From Religion Foundation to the constitutionality of the clergy housing allowance. The defendants allowed to intervene in the lawsuit are Bishop Edward Peecher, Chicago Embassy Church, Father Patrick Malone, Holy Cross Anglican Church, and the Diocese of Chicago and Mid-America of the Russian Orthodox Church Outside of Russia. The intervenors all claimed that their direct interests in preserving the housing allowance exclusion could not adequately be represented by the US Department of Justice, which had been the sole party defending the constitutionality of the housing allowance because of its responsibility to defend federal statutes.

The court noted that Rule 24 of the federal rules of civil procedure allows a party to intervene in a pending federal lawsuit if he or she meets the following requirements: “(1) the motion to intervene is timely; (2) the proposed intervenor possesses an interest related to the subject matter of the action; (3) disposition of the action threatens to impair that interest; and (4) the parties may not represent the interest adequately.” The intervenors claimed that they alone could provide facts to the court describing how the housing allowance they receive works in practice, which they asserted would help demonstrate that it has a secular purpose and effect and does not violate the First Amendment’s nonestablishment of religion clause.

The court concluded:

The proposed intervenors have satisfied each of the requirements for intervening as of right under Rule 24. No other group of people has the potential to be more significantly affected by this case than ministers such as the proposed intervenors and those they represent. In light of that substantial interest, the unique perspective that the proposed intervenors could provide and the absence of any showing of prejudice to the other parties, the court sees no reason to deny the request to intervene.

Gaylor v. Lew, 2017 WL 222550 (W.D. Wis. 2017).

—Richard R. Hammar
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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