Next target in same-sex marriage battle: Christian schools' tax exempt status

WASHINGTON (Christian Examiner) -- Christian schools and other non-profit religious organizations opposed to same-sex marriage are in danger of losing their tax-exempt status if Congress fails to act and stop the IRS, according to a coalition of 15 state attorneys general who say the Obama administration's top lawyer conceded the point during Supreme Court oral arguments this year.

West Virginia Attorney General Patrick Morrisey, a Republican, led the coalition in writing a letter to Senate Majority Leader Mitch McConnell (R.-Ky.) and Speaker of the House John Boehner (R.-Ohio), saying religious freedom is at stake.

"As the chief legal officers of our States, were are concerned that the Internal Revenue Service (IRS) may deny tax-exempt status to religious organizations following the decision of the Supreme Court of the United States in Obergefell v. Hodges," the coalition wrote.

Their concerns are two-fold and based on precedent.

First, the IRS in the 1970s revoked the tax-exempt status of Bob Jones University over the school's then-prohibition against interracial marriage and dating (a policy the university has since reversed). The Supreme Court in 1983 upheld the IRS' decision in a ruling, "Bob Jones University v. U.S."

Second, U.S. Solicitor General Donald B. Verrilli indicated during Supreme Court oral arguments this year that the Bob Jones case could lead to a conflict between the IRS and religious organizations who oppose same-sex marriage. Verrilli was arguing for the legalization of gay marriage.

Verrilli's comment came during an exchange with Justice Samuel Alito.

"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," Alito said. "So would the same apply to a university or a college if it opposed same-sex marriage?"

Verrilli responded, "You know, I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is going to be an issue."

The exchange has jarred Christian and conservative leaders who already were concerned about the fallout of the marriage decision. In June, Republicans in the House and Senate introduced the First Amendment Defense Act, which would prohibit discrimination based on one's beliefs about marriage and would prevent the IRS from taking action against religious groups. The House bill (H.R. 2802) has 130 co-sponsors, the Senate bill (S. 1598) has 36.

"All religious Americans deserve assurance that they can carry out their conscience without a federal government crackdown," said Republican Study Committee Chairman Bill Flores (R.-Texas), one of the bill's co-sponsors. "They should be able to speak freely, without Washington bureaucrats attempting to silence them."

The bill's language, though, already is drawing opposition from the American Civil Liberties Union, which calls it "Indiana on steroids" – a reference to the Indiana religious freedom law that drew nationwide attention this year.

The 15 attorneys general did not endorse any particular bill but urged McConnell and Boehner to act. The concern, the attorneys general said, is not churches – which they said are clearly protected by Supreme Court precedent – but religious schools and other non-profit religious organizations.

"The U.S. Solicitor General recently indicated ... that the federal government might decide based on Obergefell that certain religious organizations no longer qualify as tax-exempt organizations under the Internal Revenue Code and also that contributions to these organizations are not deductible as charitable contributions," the letter read. "..."To allow the IRS to proceed in this way would suggest that the IRS has the power to target disfavored beliefs in any religious organization, to effectively decide the truth or correctness of a religious belief, and to penalize as a matter of 'policy' a mainstream belief held by groups that long have received tax-exempt status."

During oral arguments Verrilli also was asked by Chief Justice John Roberts if a "religious school that has married housing" would be "required to afford such housing to same-sex couples" if gay marriage were legalized.

Verrilli did not answer the question directly but said schools would have a tougher time defending their pro-traditional marriage position in court if the federal government banned discrimination based on sexual orientation, just like it does based on race. No such law currently exists, although supporters of same-sex marriage say such a law is one of their next goals, if not the primary goal.

Also signing the letter were the attorneys general of Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah and Wisconsin.

The First Amendment Defense Acts says "the Federal Government shall not take any discriminatory action against a person" on the "basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman."

It defines discrimination as any act taken by the federal government to:

-- "alter in any way the Federal tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, or revoke an exemption from taxation under section 501(a) of the Internal Revenue Code of 1986.

-- "disallow a deduction for Federal tax purposes of any charitable contribution made to or by such person.

-- "withhold, reduce, exclude, terminate, or otherwise deny any Federal grant, contract, subcontract, cooperative agreement, loan, license, certification, accreditation, employment, or other similar position or status from or to such person.

-- "withhold, reduce, exclude, terminate, or otherwise deny any benefit under a Federal benefit program from or to such person.

-- "otherwise discriminate against such person."

Read the attorneys general letter here.

Read the House bill here.

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