Thread by @smbrnsn

So last night, when asked whether religious organizations that oppose same-sex marriage should lose their tax-exempt status, @BetoORourke answered, "Yes." He further said his administration would work toward that.

Is he right? A thread. 1/

https://twitter.com/CNN/status/1182484830044467200

But first, a caveat: I'm with him on his policy preferences. Churches should not discriminate against LGBTQ individuals. (But Sam, you say, isn't your church a significant offender in this regard? Yes. Yes it is. And if I were in charge, it wouldn't be. But I'm not.) 2/

Back to the question: is he right? Two answers. The first is, it depends.

But the second is, no. He's absolutely wrong. Churches aren't at risk of losing their exemptions for opposing same-sex marriage. And they probably aren't at risk for actively discriminating. 3/

To the extent he's thought about the legal implications, Beto's basis comes down to Bob Jones v. U.S. In that case, the Supreme Court held that a religiously-affiliated university that discriminated against African American students--based on its reading of the Bible--could 4/

nonetheless lose its tax exemption, because its discrimination violated a "fundamental public policy."

The decision requires some historical unpacking, and @professortax and I did some more in-depth unpacking and explanation here: papers.ssrn.com/sol3/papers.cf…. 5/

But if you don't want to read the full article, here's the tl;dr version: after the Civil Rights Act and school integration, many white parents tried to resegregate schools by taking their kids out of public schools and instead sending them to white-only private schools. 6/

After a lawsuit, the IRS started to revoke the exemption of private schools that discriminated based on race as violative of public policy. That was upheld.

But then Bob Jones U came along. It discriminated, too, but said its discrimination was protected by its Free Exercise 7/

rights. The Court held that "charitable," a requirement (it said, tho it may have been wrong) of tax exemption was incompatible with violating a fundamental public policy, even for religious orgs. Thus, Bob Jones U lost its exemption. 8/

And, in the intervening ~35 years? Well, not quite crickets, but there hasn't been much noise. With a couple tiny exceptions, the only organizations that have lost their tax exemptions for violating public policy have been racially-discriminatory schools. 9/

But, you say, @BetoORourke is going to actively pursue discriminatory religious orgs! Doesn't that change the calculus?

Probably not, or, at best, probably not much. He'd first have to show that discriminating violates a fundamental public policy.

And it should! 10/

But it's not clear that it does. The Court based the violation of racially discriminatory schools on the fact that all three branches of government had worked to eliminate racial discrimination in schools. And the case lagged the actual work by ~20-30 years. 11/

We probably aren't at the same level of consensus and history with protecting LGBTQ rights. We'll get there, but we're probably not there yet.

Moreover, as Eugene @VolokhC is fond of pointing out, you can't strip an org of its rights because you don't like its speech or 12/

its opinions. Moreover, as @professortax and I point out, we probably generally don't want to. Tax-exempt orgs function as a space to espouse both popular and unpopular views. While I may see a consensus of protecting LGBTQ rights today, tomorrow, an administration may 13/

argue that orgs that espouse positive views of undocumented immigrants, say, violates public policy. (I mean, it's hard to imagine someone taking that view, except, well, it isn't, sadly.)

But back to @VolokhC: that means that revoking an org's exempt status because it 14/

opposes same-sex marriage is definitely unconstitutional.

But what about if the organization actively discriminates? I mean, maybe you get there if you pass non-discrimination laws (or, say, the Supreme Court decides that sex discrimination includes discrimination on the 15/

basis of sexual orientation) AND the religious organization violates that law.

Even then, though, the proposed revocation seems unlikely, imho, to succeed. I mean, afaik, not a single church has ever lost its exemption because it discriminates on the basis of race (which is 16/

clear place where Bob Jones applies). So maybe auxiliary organizations, like religiously-affiliated schools, could be at risk. But even there, it couldn't be because they speak against same-sex marriage, or because they're affiliated with a church that discriminates. 17/

The school itself would have to discriminate.

And that's possible! And maybe this threat will cause schools to rethink their policies, and that's probably a good thing!

But this is basically an empty rhetorical threat, meant, not as a serious policy proposal, but as a 18/

signal that @BetoORourke stands with the LGBTQ community. And that signal, itself, serves a valuable purpose. But, especially given the person he would run against, I wish the signal were less cavalierly Constitution-disregarding. (Trump's big problem isn't that he cares 19/

too much about the Constitution, after all.)

Can society pressure discriminatory churches to stop discriminating? Absolutely! Should it? Same answer! But can it use pressure of unconstitutional laws or administrative actions to do so? Probably not optimal. 20/20

(And, to tag a couple religion reporters: @jackmjenkins @GuthrieGF @kelsey_dallas.)

(Also, because this was a GIF-less thread, here you go:)

@jackmjenkins @GuthrieGF @kelsey_dallas Oh, and finally, Beto's threat isn't a real threat because he's not going to be the Democratic nominee. So there's always that.