This post was originally published on Forbes Jul 9, 2015
Keith Edwards post titled Gay marriage ruling, liberal activists, plus the IRS equals big trouble for 'corporate' Churches in American Thinker really intrigued me. His legal analysis is a little confused, but the issue he raises of whether religious organizations might have their exempt status challenged due to resistance to gay marriage is an interesting question. The first thing that popped into my head was Bob Jones University.
Bob Jones University
Bob Jones University was the subject of a Supreme Court decision about whether the IRS could revoke its exempt status because of racially discriminatory policies.
The Court found that the IRS was correct in its decision to revoke the tax- exempt status of Bob Jones University and the Goldsboro Christian School. These institutions did not meet the requirement by providing "beneficial and stabilizing influences in community life" to be supported by taxpayers with a special tax status. The schools could not meet this requirement due to their discriminatory policies. The Court declared that racial discrimination in education violated a "fundamental national public policy." The government may justify a limitation on religious liberties by showing it is necessary to accomplish an "overriding governmental interest." Prohibiting racial discrimination was such a governmental interest. Hence, the Court found that "not all burdens on religion are unconstitutional."
What Is The Connection With The Recent Decision?
The Supreme Court in the Obergefel decision ruled that:
The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
As we move from the sesquicentennial of the Civil War or the War of The Rebellion or the War of Northern Aggression or the Late Unpleasantness to the sesquicentennial of Reconstruction we can be reminded that the reason we have a 14th Amendment was to prevent the reconstructed states from returning the people freed by the thirteenth amendment into virtual slavery through the enactment of Black Codes.
The concern is that the Bob Jones logic could be used to deprive religious organizations of their exempt status. I'm a little skeptical about how far that could go, but frankly I would never have predicted that somebody could be required to suffer a substantial financial penalty for refusing to bake a cake.
I thought it would be worthwhile to reach out to my brain trust on this one.
From A Preacher
The Reverend William Thornton, who as The SBC Plodder blogs on Southern Baptist issues, is my go-to guy on all matters evangelical. He wrote me:
The recent ruling makes a lot of things possible. Some of my Southern Baptist clergy colleagues are loud and happy alarmists who see both Christian persecution and divine judgment on America. I see a big mess with endless conflict over the free exercise of religion particularly in our related ministries (schools, etc.) and non-ministerial personnel. BJU was, is, a single school. Virtually every church (about 45,000) in friendly cooperation with the Southern Baptist Convention refuses to host or their ministers to perform same sex ceremonies. The 501(c)(3) stuff is virtually impenetrable to a layman like me. I am just aware that our state body holds exemption on behalf of all affiliate churches.
Adding property taxes to the church's annual expenses would close hundreds, maybe thousands, of tiny SBC churches. Revoking the tax exempt status for gifts to churches would be a much softer blow.
For whatever it is worth, there is not a one to one correspondence between IRS tax exemption and exemption from property tax.
Reverend Thronton recently did a post about some ministers separating out the civil aspect of marriage from its religious aspect and not participating in signing marriage licenses.
So, how is it that those who believe marriage has been, is, and always should be between a man and a woman would continue to serve as an agent of the government in this business of marriage? Even if the minister officiates at a wedding he deems acceptable on the basis that the couple before him is a man and a woman, should he act in the role of the state's agent in doing so?
Some ministers have separated themselves from signing the marriage forms of the state for some time. There is a movement that asks ministers to pledge to separate civil marriage from Christian marriage. Some religious traditions already maintain that separation.
From A Legal Scholar
Professor Samuel Brunson of Loyola University writes a lot about church state issues Professor Brunson does not see much merit in Keith Edwards's post:
First, he fundamentally misunderstands the so-called Johnson amendment, and the history of tax exemptions. Churches have been exempt since the introduction of the federal income tax, in 1913, so I can’t figure out why he thinks exemption didn’t happen until 1954 (when the campaigning prohibition happened).
Moreover, I sincerely doubt churches have a constitutional right to be exempt from tax. There are a handful of people who make that argument, but it strikes me as specious.
But even if I ignore all of his clear legal, factual, and historical errors, and give him every benefit of the doubt, it doesn’t make any sense to me. He’s using the campaigning prohibition as evidence that churches could lose their tax-exempt status? I mean, it happened once in the last 60 years.
And that has no relation at all to Obergefell. If he’d invoked Bob Jones instead, at least there would be some (attenuated) relationship. But even there, Bob Jones doesn’t do what he wants it to do: it just says that religiously-affiliated schools can lose their tax exemptions if they violate an “established public policy.”
A religiously-affiliated school is something different than a church, and I suspect that the First Amendment’s Free Exercise clause applies with more force to churches than to affiliated schools.
But more than that, Obergefell, while it allows same-sex marriage, doesn’t raise same-sex marriage to the level of an established public policy. In fact, if I remember correctly, the decision doesn’t import sexuality into the realm of “suspect classification”; it merely says that marriage is a fundamental civil right.
So even if he’d invoked Bob Jones, and even if Bob Jones applied to churches, nothing about Bob Jones would apply to a church’s refusal to perform same-sex marriages.
And Another Legal Scholar
Professor Edward Zelinsky of Yeshiva University often writes about the tension between the establishment and free exercise clauses of the First Amendment. He thinks that this decision will at least get some activists charged up to take on the exempt status of churches that will not recognize same-sex marriage.
The cause of the immediate controversy is the inelegant answer which the Solicitor General offered to Justice Alito’s question about the potential application of Bob Jones to churches which decline to perform same-sex marriages. For the short-run, it is implausible that either the IRS or the Obama Administration will pursue this issue. For the long-run, those religious institutions which refuse to perform same-sex marriages are correct to assume that some same-sex marriage advocates will press for the loss of tax-exempt status of churches, synagogues and mosques which decline to recognize such marriages.
This is another issue which requires drawing some important lines to balance competing and equally legitimate concerns.. A county clerk who refuses to issue licenses for same-sex marriages occupies a different position than a minister, rabbi or iman who refuses to perform such marriages in his or her own congregation. The former is using his public office to advance his religious beliefs. The latter is protecting the autonomy of his religious institution. This will be an important debate but I perceive no immediate threat to the tax-exempt status of congregations which oppose same-sex marriages.
It is worth noting that there is some language in the Obergefel decision that might comfort religious leaders.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
My own view is that tax policy should be the Switzerland of the culture war and that the IRS should be allowed to focus on collecting taxes. Of course I have a hard time understanding the wedding cake lawsuit also. When it comes to who might perform same-sex weddings, I figure that if God had wanted Southern Baptist preachers to perform same-sex weddings, she wouldn't have given us Unitarian Universalism and that we really don't want the tax collector to have a dog in that fight.