Contraception Exception and Mansions for Televangelists - Retired IRS Officer Connects the Dots

Originally Published on forbes.com on March 2nd,2012

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Robert Baty recently appeared here in a guest post on the constituionality of the clergy housing allowance.  He is back to discuss how the thinking behind the desire for conscience excecptions to Obamacare provisions compares to that behind the clergy housing allowance.

An Analogy: Healthcare for all and Housing for “ministers”!
By Robert Baty
March 1, 2012

ObamaCare and its latest manifestation regarding insurance and reproductive options have been topics of considerable discussion in recent days.  I have been attracted to that debate because of the analogy I see between it and the “sleeper” issues addressed by Senator Grassley’s recent commission investigating, in part, the income tax free ministerial housing allowance and the proceeding Freedom From Religion Foundation lawsuit challenging the constitutionality of the income tax free ministerial housing allowance.

Here’s the proposed, basic analogy:

> The opponents of ObamaCare have latched on
> to a certain administrative provision allegedly
> offensive to some.  The opponents want to
> expand the exemption for churches and their
> “integrated auxiliaries” to include, depending
> on who you talk to, just about any organization
> or business owned or operated by someone
> that invokes “religious conscience.

> The income tax free ministerial housing allowance
> that has been around for almost 100 years, was
> originally a nominal benefit for a few individuals,
> but has since been expanded to include million
> dollar benefits to tele-evangelists, their media
> production crew, corporate executives,
> “basketball ministers” and similar employees at
> private schools such as Pepperdine University.

> If the opponents of ObamaCare are allowed to
> prevail on this issue, the Government will again
> be placed, arguably, in the position of
> unconstitutionally “ entangling” itself in matters
> of religion and allowing administrators to
> quibble over whether or not certain businesses
> and organizations are “religious” enough to
> be given the option currently allowed only
> to churches and their “integrated auxiliaries”.

> The Government should have stopped with
> the allowance of a nominal benefit for “ministers”
> who live in a residence provided by their
> employer on the grounds of the employer (in
> effect codifying the application of IRC 119 to
> “ministers” so situated).

> The Government is justified in proposing that
> the healthcare exemption regarding conscience be limited
> to churches and their “integrated auxiliaries”.

There are reasons why certain businesses and other organizations have been established independent of the religious organizations (e.g., churches) to which their owners/operators might be members.

While the reasons may be as diverse as the organizations and individuals who operate them, the distinction should be recognized by the Government.  The benefits afforded to the religious organizations (e.g., churches), in this case, may be denied to the other activities of members of the religious groups in order to prevent the Government from unconstitutionally “entangling” itself in the miserable task of evaluating the “religiosity” of non-church organizations, businesses, and individuals.

Freedom of Religion is not absolute!

There may be some middle ground that is ultimately legislated or litigated, but I propose the current effort to simply expand the exemption for churches and their “integrated auxiliaries” to just about any organization or business that has someone willing to invoke “religious conscience” is misguided from a legal standpoint.

We’ve seen how such a course has played out with reference to the incometax free ministerial housing allowance and we don’t need to start down a similar road with reference to the current health care debate over reproductive options and insurance under ObamaCare.

The Government is constitutionally justified in drawing the line at churches and their “integrated auxiliaries”.

Another possible analogy also comes to mind that might be worthy of notice; some of most vocal apologists for doing little or nothing with reference to the income tax free ministerial housing allowance might look and sound like some of the most vocal apologists for expanding the health care exemption to any organization, business or individual who utters the magic words “religious conscience”.

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I really admire Mr. Baty for continuing his fight against clergy tax abuse into retirement.  I hope he remains a regular visitor here.

You can follow me on twitter @peterreillycpa.