A mini-legal-explainer on this. The question is: "do you think religious institutions, like colleges, churches, charities, should they lose their tax-exempt status if they oppose same-sex marriage?"
That's both broad and ambiguous, so let's break it apart. /1
That's both broad and ambiguous, so let's break it apart. /1
If we interpret "oppose same-sex marriage" as merely *having a belief about it,* this is viewpoint discrimination, and removing tax exemptions on that likely runs afoul of the First Amendment.
That said, I don't think that's what Beto meant nor how people interpreted it. /2
That said, I don't think that's what Beto meant nor how people interpreted it. /2
I assume Beto means the "college, church, or charity" actually *doing something* based on its opposition to same-sex marriage, like refusing services to LGBTQ people.
The tax issue has come up in the context of racially-discriminatory college admissions. The racists lost. /3
The tax issue has come up in the context of racially-discriminatory college admissions. The racists lost. /3
IMHO, a college denying applicants because they're LGBTQ would have trouble fighting an IRS rule yanking their tax exemption. The Bob Jones Univ. case + Obergefell is likely more than enough to justify it.
This issue has been brewing for a while: npr.org/2018/03/27/591…
/4
This issue has been brewing for a while: npr.org/2018/03/27/591…
/4
The churches are another matter. Bob Jones Univ. and Obergefell both carved out exemptions for churches.
That said, what about churches that invite the public to hold weddings? It's hard to square same-sex exclusions with public accommodation laws: slu.edu/law/law-journa…
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That said, what about churches that invite the public to hold weddings? It's hard to square same-sex exclusions with public accommodation laws: slu.edu/law/law-journa…
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If a church is functioning as a "public accommodation" by inviting members of the public outside the congregation to use its facilities for weddings, the argument against an IRS ruling removing their tax exemption for same-sex discrimination becomes much trickier. /6
Same is true of the charities: if they're public-facing, it's tough to maintain the religious freedom argument. See, for example, excerpts from a federal court opinion when New York challenged an adoption agency that discriminated against same-sex adoptive parents. /7
Would the federal Religious Freedom Restoration Act, newly invigorated by Hobby Lobby, impair the IRS from implementing such a rule? Who knows? And that's my point: the constitutionality & legality of what Beto proposes is not obvious. Key issues are being litigated right now. /8
I think what Beto's proposing (at least as I interpret it) is one of those situations where different judges would reach different results. Consider the ongoing saga of Arlene's Flowers (see excerpt). It's not something we can confidently answer before actually doing it. /end
And here's Beto confirming what I figured he meant: it's about revoking tax-exempt status if religious institutions discriminate when offering public services. As described in the thread above, this isn't obviously unconstitutional. It's an unsettled area.
