Please allow me to use Michael's final question as a way of turning this thread back to its original topic--namely, whether a decision for the petitioners in *Obergefell* would have any *legal *impact on religious colleges and universities that adhere to the view that same-sex marriage is immoral. I think it won't, basically for the following reasons:
1. Even today, several institutions, such as Notre Dame, (at least nominally) prohibit their students from engaging in extramarital sex at all; but very few purport to treat LBGT students differently from straight students in this regard, or to otherwise facially discriminate on the basis of sexual orientation. That is to say: There remains some such discrimination at some schools . . . but not much, and the exceptions will become even rarer over time, for reasons wholly independent from legal compulsion. As to those rare schools that do continue to discriminate . . . 2. It will be a while (if at all) before Congress amends Title IX to prohibit recipients of federal funds from discriminating on the basis of sexual orientation. 3. And if and when Congress does amend Title IX, I think it is almost inconceivable that it would not retain the current exception in 1681(a)(3) for "an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization." Therefore, there won't be any threat of a federal funding cut-off. 4. Moreover, as long as Title IX continues to include 1681(a)(3)--whcih it will--I can't imagine the IRS ever even considering withdrawing tax-exempt status from a school entitled to that exemption, if for no other reason than that it would be on very weak statutory grounds in doing so as long as Title IX expressly exempts such schools. (By contrast, recall that in *Bob Jones*, the Court stressed that Congress already had, in Title VI and "numerous [other] enactments since then," established a categorical public policy forbidding racial discrimination in public and private schools.) On Mon, May 4, 2015 at 12:20 AM, Michael Worley <mwor...@byulaw.net> wrote: > > 4) Assuming opposition to same-sex marriage is seen as irrational, is > there any reason universities should be allowed to discriminate against > same-sex couples? > > I ask these questions because in my mind, a ruling based on "no rational > basis" impacts the public square in such a way that makes any university > that holds the religious values we've mentioned (and at least 10 or 20 will > continue to do so) up for attack? I feel like you see a distinction I'm > missing here, or oppose a ruling based on the lack of rational basis. > > I look forward to your and any others responses. > > > Thanks, > > Michael > >
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