I agree with Marty's overall assessment of the SG's argument. My only quibble is that I think the intended audience may have been Justice Kennedy, the public, AND Chief Justice Roberts, and a better answer to the Bob Jones question would have been helpful with respect to the Chief (who was one of the three justices to ask a religious-liberty question during the argument). In sum, I thought the SG's argument was near-perfect with respect to his intended audience, with the Bob Jones answer depriving it of perfection. - Jim
On Wed, Apr 29, 2015 at 7:41 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > Also, the SG's answer was virtually risk-free. He had only two audiences > -- Justice Kennedy and the public. And his argument was, IMHO, pitch > perfect as to both of those audiences, elegant and powerful; one of the > best I've ever heard. Justices Scalia and Alito might be worried about the > Bob Jones analog 20 years from now; but their votes were preordained. > > On Wed, Apr 29, 2015 at 10:34 PM, Marty Lederman <lederman.ma...@gmail.com > > wrote: > >> I should have added that I agree wholeheartedly with Chip that the odds >> of the IRS doing such a thing in the next decade or two are remote -- my >> point is simply that the SG is situated very differently from us. >> >> On Wed, Apr 29, 2015 at 10:30 PM, Marty Lederman < >> lederman.ma...@gmail.com> wrote: >> >>> Chip, I'm not sure the SG could have said much differently, except that >>> he probably should have said that that's a question that would ultimately >>> be up to Congress. Remember, the U.S. was asking for heightened scrutiny >>> for all discrimination on the basis of sexual orientation. Could the SG >>> really have said that even if the Court were to apply heightened scrutiny, >>> the IRS would not act against a college that, e.g., precluded same-sex >>> "dating," regardless of what societal mores are say, 10-15 years from now? >>> If the issue didn't arise in the SG's prep, then he couldn't make such a >>> promise at oral argument. And if the issue did arise, and the SG consulted >>> with IRS, I'd be shocked if the IRS was willing to lock itself in with >>> respect to what it might do 15-20 years from now, in cases with facts that >>> are hard to foresee. >>> >>> On Wed, Apr 29, 2015 at 10:08 PM, Ira Lupu <icl...@law.gwu.edu> wrote: >>> >>>> Verrilli gave a terrible answer. The IRS ruled in Bob Jones (and in the >>>> companion case, Goldsboro Christian Schools) that these schools no longer >>>> qualified as charitable organizations under IRC sec. 501(c)(3). The IRS >>>> was moved in large part by a concern that all-white Christian academies >>>> would undermine the racial integration of public schools. Denying tax >>>> exempt status meant that contributions to these schools, which racially >>>> discriminated against students, would no longer be deductible. The schools >>>> would also face other expensive tax consequences. >>>> >>>> The IRS has never extended its reasoning in the Bob Jones case to any >>>> religious organization that discriminates based on sex, sexual orientation, >>>> etc. There is no reason to believe that it would act against faiths that >>>> reject same sex marriage, any more than it would act against a faith that >>>> rejected divorce, inter-faith marriage, etc. This is just more >>>> fear-mongering. >>>> >>>> >>>>
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