By Mike Berry, General Counsel
The Coronavirus pandemic of 2020 caught most of us unprepared. Among its many surprises was the rare bipartisan nature of the recovery and stimulus package known as the Coronavirus Aid, Relief, and Economic Security (CARES) Act. But what was not surprising was how quickly those who oppose religious freedom challenged the right of clergy to receive CARES funds. As usual, such attempts to deprive pastors, rabbis, priests, and imams of the very same aide that millions of others are eligible to receive ignores history and the law.
In its letter to the U.S. Small Business Administration (SBA), a small group of activists—led by Americans United for the Separation of Church and State—claimed that taxpayer dollars cannot be used to pay clergy salaries. In support of its claim, the group makes a number of flawed, specious –and wrong– arguments.
In truth, Congress has been paying clergy salaries since the founding of the nation. In 1789, the first Congress passed a law providing for legislative chaplains’ salaries. Nearly two centuries later, the Supreme Court upheld the constitutionality of those legislative chaplains, concluding that it “is not . . . an establishment of religion,” but rather “a tolerable acknowledgement of beliefs widely held among the people of this country.” Today, in continuance of the first Congress’ policy, America funds the salaries, activities, and operations of its thousands of military chaplains, each of whom is ordained clergy.
Attempts to abolish the military chaplaincy as a breach of the so-called separation of church and state have been tried and failed. In 1985, two Harvard Law School students challenged the constitutionality of the U.S. Army’s chaplaincy, arguing that government funding of chaplains and their salaries violated the Constitution’s Establishment Clause. A federal appeals court rejected the challenge, noting that the Constitution actually “obligates” Congress to provide chaplains for the troops who otherwise might not have access to religious services.
Recent events demonstrate the wisdom of such an obligation. In the midst of current “stay-at-home” orders, military chaplains have joined ministers across the country who hold online services for those unable to attend a physical place of worship. One military chaplain assigned to Fort Knox stated “where normally we see 45 and 50 people each Sunday, I’ve had over 650 views of last Sunday’s service, and our numbers are still climbing.”
Sadly, the assault on religious freedom doesn’t stop with objections to military chaplains. Recently, yet another activist group challenged the constitutionality of the “parsonage exemption” which permits clergy of any faith to claim a tax exemption on qualifying housing. Incredibly, a federal judge agreed that the tax exemption violated the apocryphal separation of church and state. But last year, a federal appeals court reversed the decision and upheld the parsonage exemption. While almost certainly unintended, the appeals court’s rationale now seems prescient.
The court pointed out that many non-religious employees receive tax exemptions for work-related housing. For example, first responders, teachers, and military personnel are each eligible for tax relief on housing. Clergy should be treated no differently just because they are clergy.
How appropriate it is that the court identified population groups that are now at great risk, whether physically or financially, as a result of the Coronavirus pandemic. And it is precisely those groups who will help America recover and return to normalcy.
As our president and our governors contemplate when and how to “re-open” the nation, religious leaders will undoubtedly play a vital role. As a result of an unseen virus, millions of Americans have had their lives wrecked, whether by lost jobs, wiped-out investments, or the fear, anxiety, and uncertainty the past weeks have wrought upon us and those we love.
If America is to make a comeback, it will take all of us. That means harnessing the incredible spiritual power of our faith communities to buoy us. But underlying that spiritual power is an economic sleeping giant. According to a recent study, America’s collective religious community contributes an estimated $1.2 trillion to the U.S. economy annually. That’s more than Facebook, Google, and Apple combined.
Clergy can, and must, receive CARES Act funds. Historically and legally, it is constitutionally permissible to use tax dollars to pay their salaries and off-set their housing costs. And morally, it is simply the right thing to do. America’s clergy deserve to be treated no differently than anyone else.