Well, it’s possible that many people who, today, believe that it
would be sinful for their religious institutions to treat same-sex
relationships the same as opposite-sex relationships take solace in the notion
that a couple of decades for now, their religious groups will have changed
their minds. I just suspect that many others don’t take that view; they think
(rightly or wrongly) that their theology of today is sound, and are troubled by
the prospect that in a couple of decades adherence to this theology will render
them legal and social outcasts.
I also don’t think the history below is quite accurate. Unless
I’m mistaken, the IRS began to deny tax-exempt status to institutions that
discriminate based on race in 1970. At that point, according to Gallup, about
20% of whites approved of interracial marriages, and 60% of blacks; and I’m
pretty sure that in 1970, we couldn’t say that “[race] discrimination [was]
anathema to almost all Americans.” Even if we use 1981 as the baseline, at
that point about 35% of whites approved of interracial marriages, and about 70%
of blacks did. See
http://www.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx . What
drives these things, I think, is not the judgment of “almost all Americans”;
it’s the judgment of particular political and legal elites. That judgment may
sometimes be more sound than the judgment of the public – but I don’t see how
the public can reasonably take comfort in the notion that certain policies
won’t be adopted until “almost all Americans” believe in them.
But at least I appreciate Marty’s acknowledgment that, in a
couple of decades, we might well see denial of tax exempt status to colleges
that discriminate against gays. The fear that Chip suggests is being whipped
up thus seems, as I noted, a reasonable fear.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, April 29, 2015 8:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage
The Court isn't going to hold that strict scrutiny applies. (Indeed, I doubt
it'll even go to heightened scrutiny -- it's too easy simply to say that the
denial of SSM does not satisfy rational basis review.)
Moreover, whatever the Court holds, the IRS will not deny tax-exempt status to
colleges that discriminate against gays, if at all, until such discrimination
is anathema to almost all Americans, and all religions, the same way race
discrimination had become by 1981. That day is probably still a couple of
decades away. But whenever it might be, I'm fairly confident of this: It
won't happen until after Congress enacts ENDA, and adds sexual orientation to
Title VI. At which point, the idea will not seem so outrageous to anyone still
participating in this listserv.
And Eugene, I'd be willing to wager that very few of today's conservative
Christians' organizations will be "legally and socially marginalized" at that
point, because by then they, too, will have voluntarily ended their
discriminatory practices.
On Wed, Apr 29, 2015 at 11:02 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
It sure is a way to whip up fear among people with traditional
beliefs. But fear may often be perfectly logical, and a sound stimulus to
political action. The gay rights movement has been trying hard to stigmatize
sexual orientation discrimination, and hostility to homosexuality, as legally
and morally tantamount to race discrimination. I’ve heard it again and again.
If the Supreme Court accepts the argument that governmental sexual orientation
discrimination is constitutionally tantamount to governmental race
discrimination, that equivalence will become much easier to argue in other
contexts – including when it comes to IRS policies.
If I were a conservative Christian (which I most certainly am
not), I would be very reasonably fearful, not just as to tax exemptions but as
to a wide range of other programs – fearful that within a generation or so, my
religious beliefs would be treated the same way as racist religious beliefs
are: my institutions will be legally and socially marginalized, I and people
who think like me would be cut out of jobs for visibly holding our beliefs, and
so on. Many on this list might think this result would be perfectly just. But
I can’t see why conservative Christians should be expected to take this with
equanimity, or ignore reasonable warnings that this is the way things may well
go.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
On Behalf Of Ira Lupu
Sent: Wednesday, April 29, 2015 7:40 PM
To: Law & Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage
Whether or not the SG could or should have answered differently, we can think
about this with clear heads. I don't know what the "level of scrutiny" has to
do with this question of tax exemption. Unmarried students at religious
colleges have a right of sexual privacy against the state, but not against
their schools. If a religious college had a policy of expelling any student
who had sex outside of marriage, is it imaginable that the IRS would revoke the
school's tax exemption? The IRS has never even revoked the tax exemption of a
church that would not accept a inter-racial marriage.
The whole "Bob Jones" story look like a way to whip up fear among people with
traditional beliefs. Does it not tell you something that the IRS has not
exercised this sort of power in over 30 years?
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