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As a Catholic priest, who is also a graduate of Bob Jones University (BJU), I caught with interest Supreme Court Justice Samuel Alito’s question when oral arguments about same-sex marriage were being heard in May.

Justice Alito referred to the 1983 case in which the Supreme Court decided that Bob Jones University’s ban on inter-racial dating was illegal. BJU claimed that the federal government had no right to interfere in the school’s internal matters and as BJU was a religious institution, to do so would be an infringement of their religious freedom. The court disagreed and yanked their tax-exempt status.

The furore started when the federal government first revoked the university’s tax exempt status in 1971. I was a student there in the 70’s and I well remember the heady arguments and sense of persecution that came with a battle with the big boys. The roles in the drama were clear: Bob Jonesers were the persecuted Christians and the feds were Nero.

The case made its way through the courts and it all came to a head in 1983 with the Supreme Court’s decision. BJU held out, and it wasn’t until the year 2000 that the school’s president Bob Jones III finally backed down and announced on the Larry King show that the school’s policy against inter racial dating would be lifted.

Justice Alito

Justice Alito

The case has become increasingly well-known over the years as it established a precedent in the ongoing debate over the limits of religious freedom in the United States. Justice Alito asked whether the Bob Jones decision would be used to bully opponents of same-sex marriage. The exchange between Alito and Donald B Verrilli, who was arguing for same-sex marriage, was not encouraging.

It went like this:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?

Donald Verrilli: You know, ­­I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is–it is going to be an issue.

Justice Scalia

Justice Scalia

Justice Scalia pressed the same-sex marriage advocates a bit further, asking Mary L. Bonauto, who represented the gay couples in the case, whether it was conceivable that a minister could decline to marry two men, if indeed the Supreme Court holds that they have a constitutional right to marry. She replied, “No clergy is forced to marry any couple that they don’t want to marry. We have those protections.”

Considering the constantly-shifting positions among the same-sex lobbyists, one is justified in doubting Mary Bonauto’s re-assurances. When the whole debate started, same-sex couples said they were not interested in marriage, but simply in having civil partnerships. As soon as civil partnerships were granted, the push for same-sex marriage began. Why should those opposed to same-sex marriage trust them this time?

The comparison to the Bob Jones University case is doubly interesting not only because it is a matter of religious freedom versus equal rights, but because the particular issue is that of marriage. Bob Jones University had its tax- exempt status revoked because it refused to allow a particular form of marriage which it considered against its religion, but which society said was a civil right. Isn’t that what religious opponents of same-sex marriage are doing? The cases are very similar and this is why voices are already being raised calling for religious bodies to lose tax exemptions.

In Fusion Felix Salmon was up front about it. “Now that the U.S. government formally recognizes marriage equality as a fundamental right, it really shouldn’t skew the tax code so as to give millions of dollars in tax breaks to groups which remain steadfastly bigoted on the subject.” He went on to argue that the “U.S. government subsidizes churches.”

Citing the BJU case, Salmon continues, “It’s abundantly clear that religious institutions have no right to tax exemption… If your organization does not support the right of gay men and women to marry, then the government should be very clear that you’re in the wrong,” he said. “And it should certainly not bend over backwards to give you the privilege of tax exemption.”

church_gay_flag_2New York Times columnist Mark Oppenheimer agrees. Writing for Time magazine he says, “Now’s the Time To End Tax Exemptions for Religious Institutions.” Oppenheimer also cites the Bob Jones University case, and says we need to re-consider how religious and nonprofit organizations are treated under the tax law. Not for half measures he says, “Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step,” he wrote. “It’s time to abolish, or greatly diminish, their tax-exempt statuses.”

Some like George Weigel and Fox News’ Bill O’Reilly believe it is only a matter of time before homosexual activists target a church with a lawsuit while Barry W. Lynn, executive director of Americans United for Separation of Church and State thinks the talk is alarmist. Talking to Billy Hallowell at Blaze, Lynn said, “The talk about churches losing tax exemption for their viewpoints is hyperbolic…The possibility of a church losing its tax exemption for advocating anti-LGBT views is effectively zero.”

Such an opinion assumes that homosexual activists are satisfied with their victory, that they have no further agenda, that they feel benevolent towards the Christian churches, respect religious freedom, and that they do not wish to push social boundaries any further. Does that sound plausible?

Will the same-sex marriage decision endanger religious institutions’ tax exempt status? Donald Verilli’s answer to Justice Alito echoes loudly: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is–it is going to be an issue.”

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4 replies to this post
  1. “Will the same-sex marriage decision endanger religious institutions’ tax exempt status? ”

    Absolutely it will come to a head. Even if they (the gay lobby) were happy with the current situation, which I suspect they’re not, it’s only a matter of time when a new generation will look to further expand gay “rights.” Progressives never stop. Unfortunately precedents have already been established, so I hold little hope.

  2. Indeed, licenses to act as justices of the peace will be the tool to force “non-discrimination”. That is implicit e.g. now there are always two ceremonies, if you want a marriage in your Church. In that case, with the majority of ministerial licenses abandoned, it is not winnable for the advocates to challenge tax status. That I believe, is safe…. P.S. However, I also believed this set of justices would err in favor of states’ rights!…

  3. if I were writing a Constitution, I would try to set up a framework where the federal legislature and by extension the federal government couldn’t pass laws or even take actions which restricted the free exercise of religion.

    That would be cool.

    I’m afraid, though, even if that were to happen, over time, the plain meaning of those words would probably be lost by statists/secularists/crusaders for immorality.

  4. Wow! That would be cool. Hey wait a minute, that is how our Constitution already works. The only problem is, no matter how perfectly any constitution is written, it cannot enforce itself.

    But you are right about the people, even good people, if they don’t understand it and enforce it, the Constitution is just ink on parchment under glass in a nice museum. With little or no comprehension of the Principles of Liberty, the people cannot even qualify the candidates running for office, which is why we wind up with the clueless dregs of humanity in office on both sides. Without understanding their rights, they don’t even understand when their rights are lost or when their country is under attack from within.

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