Quick correction to my email below -- in point 2, "the dissent of two justices" should read "the dissent of one justice" (I was also reading Runyan today, in which both White and Rehnquist dissented, and I confused that case in my mind with Bob Jones, in which only Rehnquist dissented). - Jim
On Wed, Apr 29, 2015 at 7:18 PM, James Oleske <jole...@lclark.edu> wrote: > My quick take is that, at least in the short term, the prospect of such > schools losing their tax-exempt status is very low for the following > reasons: > > 1. Unlike most antidiscrimination statutes and regulations, which > typically extend beyond racial discrimination to religious discrimination > and sex discrimination, and often to a host of non-constitutionally suspect > types of discrimination (age, disability, marital status), the IRS rule at > issue in Bob Jones has never been extended beyond racial discrimination. > Thus, a religious school that prohibits interfaith marriages or marriages > between divorced individuals, or that excludes individuals from certain > activities based on sex, has never been at risk of losing its tax-exempt > status under the long-standing IRS rule, which has always been limited to > racial discrimination. > > 2. The threshold issue in Bob Jones was whether the IRS's interpretation > of the statute, which makes no mention of racial discrimination, was > reasonable. In the unique context surrounding issues of race and education, > and in light of Congress's acquiescence in the agency's interpretation, the > Court deferred to that interpretation (over the dissent of two justices). > I'm skeptical that the current Court would defer to a new interpretation of > the statute, whether extending it to prohibit religious discrimination, sex > discrimination, sexual-orientation discrimination, or any other type of > discrimination. Perhaps if the Court rules in Obergefell that > strict-scrutiny applies to sexual-orientation there would be an argument to > add sexual-orientation to the IRS rule when sex has never been added, but I > don't think anyone believes the Court is going to adopt strict scrutiny for > sexual-orientation discrimination. > > 3. There is virtually no chance that the current Congress would amend the > statute to strip tax-exempt status from religious schools that prohibit > same-sex marriages among their students. > > Of course, if Congress was to amend the statute, or if the IRS was to > reinterpret the statute and that interpretation was upheld by the Court, > the schools would still be able to make a RFRA claim. And given that Hobby > Lobby interpreted RFRA as providing more protection than the pre-Smith free > exercise jurisprudence, and given that sexual-orientation is not likely to > be deemed a fully suspect class like race, it would seem the schools would > have a better chance of prevailing than did Bob Jones. > > - Jim > > On Wed, Apr 29, 2015 at 6:39 PM, Brad Pardee <bp51...@windstream.net> > wrote: > >> In an article from the Weekly Standard, the question was raised about the >> implications for religious organizations losing their tax-exempt status if >> they continue to oppose same-sex marriage. The article talked about the >> case of Bob Jones University v. United States (1983), where they lost their >> tax-exempt status based on their opposition to interracial dating. Given >> the number of instances I've seen where parallels are drawn between >> interracial relationships and same-sex relationships, it seems realistic to >> ask if religious organizations would be similarly stripped of their >> tax-exempt status if the Supreme Court finds a constitutional right to >> same-sex marriage. The article includes this piece of discussion between >> Justice Samuel Alito and Solicitor Donald Verrilli Jr. >> >> >> >> 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? >> >> GENERAL VERRILLI: You know, I -- 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. I don't deny that, >> >> JUSTICE ALITO: It is -- it is going to be an issue. >> >> >> >> >> http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-could-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same-sex-ma >> >> >> >> What is the consensus of this list? Would a ruling in favor of same-sex >> marriage lead to the same requirement that religious organizations accept >> same-sex marriage to avoid losing their tax exempt status, or would the >> religious freedom provisions of the First Amendment prevail here where they >> did not prevail where Bob Jones University is concerned? >> >> >> >> Brad Pardee >> >>
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