June, for conservatives, has been of late the “cruelest month” at the Supreme Court, as the decisions finally roll forth. Many expect—with a combination of apprehension and resignation—that in the critical case of Obergefell v. Hodges, Justice Anthony Kennedy will furnish the fifth vote for installing same-sex marriage as a constitutional right. But already, during the oral argument in the case in April, the solicitor general, Donald Verrilli, set off tremors in the land when Justice Samuel Alito raised the question of the precedent in the 1983 case of Bob Jones University.
In that case, the Court held that the IRS was justified in witholding tax-exempt status from a fundamentalist Christian school because its policies on race were “not in accord with public policy.” The school had abandoned a policy of refusing to admit black students, but it retained a policy of barring, to its students, dating and marriage across racial lines. When Justice Alito raised the possible relevance of this case, the solicitor general did not dismiss the dark possibilities here. He drew wide attention simply by saying, “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue.” As the line went, they would have to look into it.
But the hard truth is that it will take no hard look by the administration—it will require no decision at all by the White House—just as the original case required no decision from the Reagan administration. The denial of the tax exemption was made by the IRS itself in response to an orchestrated campaign of complaints directed to the IRS. And why did the action take this path? Because there were no complainants claiming that they had been denied access to the university or any of its programs on account of their race. No case could be brought against Bob Jones under the Civil Rights Acts, whether of 1866 or 1964. The university contained students of all races who came of their own free will, and evidently they had been willing to live under the rules on interracial dating and marriage. It was, rather, comparable to a dating service taking in members of all races, who either preferred, or were willing, to confine their dating within their own ethnic or racial group.
And that state of affairs, plainly put, is what made the decision of the Supreme Court so wildly inapt: for there was absolutely nothing in the public policies of the United States—nothing in the statutes, executive orders, or decisions of courts—that made it unlawful for persons to discriminate on the basis of race in their own private choices of partners in sex and marriage. All of the precedents involved statutes that barred people, by law, from marrying or cohabiting with partners outside their own race.
The question then was whether the principle that barred racial discrimination in marriage law would indeed extend to private acts of discrimination in choosing partners. The signs were everywhere that even the most advanced on the left did not accept such a principle. For in journals of the liberal literati, such as the New York Review of Books, one could find personal ads reading: “SWM seeks SWF.” Translation: Single white male seeks single white female. The New York Review would never publish an ad saying “White landlord seeks white tenant.” That it would publish such an ad for persons seeking partners showed that the principle that brought Bob Jones University afoul of the law was a principle accepted even by the New York Review of Books.
But if the Supreme Court establishes a new constitutional right to same-sex marriage, the situation will be decisively altered. The religions that reject, in their moral teaching, homosexual acts and same-sex marriage will indeed be marked, in their defining character, as groups no longer “in accord with public policy.” Then there will be no need for the Obama administration to formulate and justify a further decision—no need to play the villain and deny tax exemptions to churches and religious schools that do not accord with the new orthodoxy on marriage and sexuality. Only two things will be required: (1) the orchestration of a campaign of complaints directed to the IRS and (2) an IRS sufficiently complaisant to churn out the decision that the administration and its allies so evidently want.
The Obama administration and the Democrats have already shown formidable skill in networking; it will be no strain to produce the deluge of letters to the IRS. And as for the IRS, do we have any reason to doubt that it is quite up to the political work that must be done?
It seems to have slipped into the black hole of history that just two years after the Bob Jones case there began another orchestrated campaign of letters, all bearing the same style and form. Seven hundred of these letters, coming from different parts of the country, descended over three years on the Office of Civil Rights in the Department of Education. And they sought the same end: to compel private colleges to cover abortions in their medical plans or lose federal aid. For liberal schools such as Amherst and Wellesley, there was no strain. But small religious schools, such as Eastern Baptist Theological Seminary in Philadelphia and Merrimack College in North Andover, were too fragile financially to withstand the threat of litigation. Some agreed to cover abortions, and others, such as La Salle University in Pennsylvania, decided to drop altogether their program of medical insurance for students. In other words, there is nothing novel here; the scheme of intimidation has already been rehearsed and practiced.
Once a constitutional right to same-sex marriage is in place, the only corrective will be an explicit decision by Congress to protect groups that do not accept same-sex marriage, whether on religious or distinctly moral grounds. But even if such a bill passed and survived a veto from President Obama, test cases would be brought, and a friendly Clinton or Obama judge would strike the law down. The judge could simply draw on Justice Kennedy’s playbook and say that Congress had been driven by an “animus” to the homosexual life and to the decision of the Supreme Court on marriage.
Then, once appeals reached the Supreme Court, all it would take would be one more appointment to the Court by Obama or a second President Clinton and the issue would be put away for good. Justice Kennedy, after all, is still credited with a lingering inhibition about coercing people, especially the religious. But we can be sure that any new appointee from a Democratic administration will be serenely delivered from such inhibitions.
By simple steps, already well practiced, the culture war can be taken ever closer to its endgame.
Hadley Arkes is the Ney professor of jurisprudence at Amherst College.
