In an expected but unfortunate development, the Freedom From Religion Foundation filed a new lawsuit on April 6, 2016, challenging the constitutionality of the ministerial housing allowance under section 107 of the Internal Revenue Code. This lawsuit follows a similar lawsuit, filed in the same federal court in the Western District of Wisconsin, where the judge ruled that the housing allowance (not the parsonage provision) was unconstitutional. Fortunately, the earlier decision was overturned by the Seventh Circuit Court of Appeals in November 2014 on a technicality.
As a part of the Seventh Circuit’s decision, reversing the lower court’s decision on a technicality, the court’s opinion went on for page after page telling this same group how they would have to refile their case and the steps they would need to take to keep from having their case dismissed in the future. It seems as though the Freedom From Religion Foundation, and their officers, have taken that advice to heart and have done exactly what the court suggested they would have to do to have a viable case.
While the previous case only held that the ministerial housing allowance was unconstitutional, the new lawsuit is requesting that both the housing allowance and the tax-free use of parsonages be declared unconstitutional. Further, based upon the new filing and the court’s previous decision, the Freedom From Religion Foundation is also requesting immediate injunctive relief, as well as a declaratory judgment that the housing and parsonage provisions, found in Section 107 of the Tax Code, are unconstitutional on their face.
Because of the request for injunctive and declaratory relief, if the Court is so inclined, a decision could come very soon. We will keep you advised of any major developments in this case.
The lawsuit, known as Gaylor, et al vs. Lew, et al, was filed in the United States District Court for the Western District of Wisconsin and has been assigned Case No. 16-CV-215.