Still No Ruling in the Clergy Housing Allowance Case
Still No Ruling in the Clergy Housing Allowance Case
After nearly six months, a decision still may be weeks—even months—away. Here’s why.
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FIRST UPDATE: The US Court of Appeals for the Seventh Circuit in Chicago issued its decision on March 16, 2019, ruling the clergy housing allowance to be constitutionally permissible. Read more here.

SECOND UPDATE: The Freedom From Religion Foundation (FFRF) announced it will not petition the US Supreme Court to review the Seventh Circuit’s decision.

Oral arguments were heard nearly six months ago in the appeal to the ruling determining the clergy housing allowance tax benefit was an unconstitutional preference for religion.

But no decision on that appeal has come yet.

Is that unusual?

The short answer is no, according to several attorneys who are not directly involved with the litigation, but either specialize in church legal issues or possess familiarity with the US Court of Appeals for the Seventh Circuit in Chicago (the court hearing the case), or both.

The primary reasons are the complexity and significance of the case, given the collective value of the benefit (roughly $1 billion annually), the longevity of the benefit (about 65 years), and the First Amendment issues the case raises.

The initial decision, delivered in 2017 by a federal district judge in Wisconsin, deemed the benefit unconstitutional. If affirmed upon appeal, the housing allowance would become invalid for churches and clergy members in Illinois, Indiana, and Wisconsin. Some anticipate nationwide fallout as well.

“The question of whether the housing allowance … favors certain religious activity in violation of the US Constitution raises complex legal issues,” said Stuart Lark, an attorney with Sherman & Howard in Colorado Springs and an editorial advisor for Church Law & Tax. “In addition, the housing allowance is a valuable part of the compensation package for many church and ministry leaders of all religious and political persuasions throughout the country. If the court strikes down the housing allowance, it would create significant financial difficulty for many ministers (and their church or ministry organization employers), including retired ministers whose retirement packages partially rely upon the housing allowance.”

Another explanation for the timing includes the inner workings of the judicial process.

“Written appellate decisions can be very slow in coming,” said Sally Wagenmaker, an attorney with Wagenmaker & Oberly in Chicago and president and chairperson of the Christian Legal Society.

Noel Sterett, an attorney at Dalton & Tomich in Chicago, said he wasn’t surprised by the timing, either. Sterett argued a religious land use case in early November before the Seventh Circuit, a week after the housing allowance case’s oral arguments took place—yet the Seventh Circuit issued its decision in the religious land use case in January. That could mean a housing allowance decision is imminent, he said. “[But] to give you another possible measure, the Seventh Circuit took a year to issue [its] recent ruling in the Chicago abortion buffer zone case, which was argued in February 2018 and decided in February 2019,” Sterett added.

March 12, 2019

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