OGA Statement on Minister Housing Case

The Office of the General Assembly (“OGA”) has been receiving inquiries and questions regarding the November 21, 2013 decision of a federal district court (Western District of Wisconsin) judge in Madison, Wisconsin which held that a portion of Section 107 of the Internal Revenue Code is unconstitutional.  Section 107 is the provision dealing with tax-favored housing benefits for “ministers of the gospel.”  Specifically, the court held that Section 107(2), which permits ministers to receive tax-free cash “housing allowance,” is unconstitutional because it violates the Establishment Clause of the First Amendment of the U.S. Constitution.  Section 107(1), which allows ministers to reside tax-free in a church-provided manse, was not affected by the court’s decision.

In the case, Freedom From Religion Foundation, et al. v. Lew, et al., the United States government was the party which defended the constitutionality of Section 107, a federal law enacted by Congress many decades ago.  As the losing party, the government must now decide whether it wants to appeal this decision to the next level of the federal court system, the Seventh Circuit Court of Appeals in Chicago.  Based on available information, an appeal is likely.  Read more.