With gay marriage now legal nationwide, leaders of religious schools must be sweating. Moral implications aside, they may be worried about their school’s tax-exempt status. And not without reason.
“Any federal initiative … to remove tax-exempt status from faith-based educational institutions because of their commitment to their beliefs about marriage would result in severe financial distress for those institutions and their millions of students,” more than 70 school officials wrote in a June 3 letter to congressional leaders. “It would constitute a devastating and dangerous blow to free religious belief and practice in a nation founded upon such.”
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Precedent shows that fear may be justified. In Bob Jones University v. United States, the Supreme Court ruled that the Internal Revenue Service could strip an institution of its tax-exempt status if it prohibited interracial relationships.
But a brief passage from Justice Anthony Kennedy’s majority opinion may ease the minds of religious leaders. “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,” Kennedy wrote. “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 Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
But that doesn’t mean an IRS supportive of gay marriage won’t try to revoke tax-exempt status from schools that teach that homosexuality is wrong. When challenged on that point by Justice Samuel Alito during oral arguments, Solicitor General Donald Verrilli said, “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that.”
Trevor Burrus, a research fellow at the Center for Constitutional Studies of the libertarian Cato Institute, agrees that the tax-exempt issue will likely be challenged in court. Cato filed an amicus brief in favor of legalizing same sex marriage. Burrus says the courts will be able to distinguish between interracial marriage and gay marriage.
“The opinion explicitly protects the right of religious institutions to operate according to their consciences, specifically regarding gay marriage,” Burrus told the Washington Examiner. “Future cases might be brought trying to change that, but my prediction is that those challenges will not be successful.”
Just in case that prediction is wrong, some members of Congress have legislation ready.
On June 17, Sen. Mike Lee, R-Utah, and Rep. Raúl Labrador, R-Idaho, reintroduced “The First Amendment Defense Act.” The act would prevent the IRS, or any other federal agency, from denying tax exemptions to individuals or institutions based on their traditional marriage beliefs. Grants, contracts, licenses and certifications would also fall under the legislation.
As of Friday, the House version of the bill has 69 co-sponsors, all but one of whom are Republicans. Lee announced 18 co-sponsors in the Senate, all Republicans.
“The vast majority of Americans today still hold a robust view of religious liberty, yet across the country the right of conscience is threatened by state and local governments that coerce, intimidate, and penalize individuals, associations, and businesses who believe that marriage is a union between a man and a woman,” Lee said in a June 17 press release. “The First Amendment Defense Act is necessary to ensure that this kind of government excess never occurs at the federal level.”
There are almost 29,000 religiously-affiliated pre-K through 12 schools in the U.S., according to the National Center for Education Statistics’ latest data.
