In Part 1 of the series, we looked at how Obergefell v. Hodges, the Supreme Court’s same-sex marriage decision, affects churches and individuals. The good news is that in the short term the religious liberty of these groups will be protected. However, we also noted that the decision, while not a direct threat to people of faith, opens the door for serious problems.
This second of a three-part series will look at the way same-sex marriage legalization impacts faith-based organizations such as schools and adoption agencies. These entities are more directly in the crosshairs of potential legal action challenging their role to operate according to the tenets of their faith. Already the way public officials see faith-based organizations is starting to shift, with troubling repercussions for people of faith.
Tax-Exempt Status at Oral Argument
The good news is that even after the Supreme Court decision, most faith-based organizations are operating in the same manner they did before June 26, 2015. The Salvation Army is still providing food and clothing, and Andrews University is still instructing students in ways that uphold the mission and vision of the Seventh-day Adventist Church. However, both the decision and the oral argument hint at turbulent times to come. While the Supreme Court does recognize that religious freedom deserves protection, some of the justices and some government officials hold the narrow view that while this may apply to churches, faith-based organizations are different.
The strongest hint of this view came during the oral argument for the case in April 2015. Toward the end of the government’s case, Justice Alito asked whether a faith-based organization, such as a school, could lose its tax-exempt status for opposing same-sex marriage. Justice Alito explicitly referenced the Bob Jones v. United States case, in which a conservative faith-based university lost its tax exemption because its ban on interracial marriage went against “the public interest.”
Solicitor General Donald Verrilli, the government’s top lawyer, responded:
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.
“It is going to be an issue.” The Obama administration’s top lawyer publicly admitted that legalizing same-sex marriage would be problematic for faith-based institutions whose aims include both sacred and secular purposes.
State Response: Protecting Faith-Based Institutions
Indeed, in the short time between the argument in April and the decision in June, states such as Michigan began preemptively responding to the anticipated decision legalizing same-sex marriage. Michigan, as one of the four states officially part of the case, was one of the last states to legalize same-sex marriage and therefore had time to think prospectively about its implications for faith-based social welfare organizations.
Therefore, leaders of the state’s largest religious organizations—such as the Michigan Catholic Conference, the National Coalition of Black Pastors and Christian Leaders, and Bethany Christian Services—worked behind the scenes to secure passage of legislation that would protect faith-based adoption agencies. The legislation requires faith-based agencies to provide their policies in writing to potential clients if they do not allow for same-sex adoption. This change helps protect faith-based adoption agencies and ensures that LGBT individuals who want to adopt are not blindsided in the adoption process.
Obergefell: The Justices on Faith-Based Organizations
As noted in Part 1, when the Supreme Court decision came down it gave merely a cursory mention of religious liberty. Churches? Good. Faith-based institutions? Unclear.
The dissenters in the case picked up on this point. Chief Justice Roberts, the first up in dissent, states that the decision creates serious questions about religious liberty. Because the decision is coming through the Court, which is not supposed to make law, the decision does not include any religious liberty protections or, as the Chief terms them, “accommodations.” While the majority does kindly remark that people of faith can still “advocate” and “teach” their views on marriage, there is nothing in the opinion about “exercising” those views. The Chief then goes on to point out the hard questions that arise when religious believers attempt to exercise their beliefs (as the First Amendment encourages) in ways contrary to same-sex marriage rights.
What might those exercise rights be? The Chief lists examples such as a faith-based university that provides student housing only to married opposite-sex couples but not same-sex couples, or adoption agencies that don’t place children with same-sex couples (the rationale for Michigan’s protection legislation). The Chief then refers back to the oral argument, reminding the reader that the Obama administration’s top lawyer honestly admitted that the tax-exempt status of faith-based institutions would be threatened if they continue in their beliefs on same-sex marriage.
The Chief ominously predicts that these issues will soon appear before the Court. “Unfortunately,” he writes, “people of faith can take no comfort in the treatment they receive from the majority today.”
Justice Thomas adds to the warnings, beginning with the statement that even those who did not oppose legalizing same sex-marriage have warned the Court that its decision would have problematic and long-term effects on religious liberty. He specifically cites the Seventh-day Adventist brief, which did not take a position on same-sex marriage but did warn that legalizing it could certainly be problematic for faith-based institutions.
Response to the Decision: Faith-Based Organizations and Political Leaders
Now the decision is in, yet the outcome is still uncertain. Will religious organizations that hold different beliefs on marriage than the Supreme Court be allowed to practice freely and still maintain their tax-exempt status?
Anticipating the legalization of same-sex marriage, more than 70 religious leaders wrote a letter to Congress warning how legalizing same-sex marriage could force schools to choose between their faith and their tax-exempt status. Indeed, two days after the decision, Mark Oppenheimer, a Jewish journalist from the New York Times, called for just such consequences. In an op-ed for Time magazine, Oppenheimer declared that now that the Supreme Court has made its decision on same-sex marriage, it’s time to follow through with the logical conclusion and end the tax-exempt status for dissenting religious ministries (and, indeed, for most nonprofits). While he might just grant an exception for religious hospitals, faith-based universities and social welfare organizations would be out of luck.
Political leaders seem uncertain about this question. The #2 Democrat in the Senate, Richard Durbin, when asked if religious schools that require employees to affirm their faith’s teaching about marriage could keep their tax-exempt status, replied that it was a challenging question. “I’ll have to think about it long and hard,” he said.
Senator Ben Cardin, a Democrat from Maryland, was even less encouraging when asked about the issue, stating that religious freedom is fine to teach but shouldn’t affect third parties. Translation: religious freedom is great inside the four walls of the church, but take it outside and all of a sudden “if you are affecting the rights of third parties, then you’ve crossed the line,” as the senator stated. When asked specifically about faith-based schools, the senator admitted, “I’m not sure how it applies to Christian-run schools.”
Senator Cardin’s reasoning sounds a lot like the majority’s statement in Obergefell about people of faith having the freedom to advocate, teach, or adhere to their beliefs within the confines of their own faith community, but not necessarily to exercise them freely in public.
The only good news is that the IRS has no immediate plans to touch the tax-exempt status of these faith-based organizations. Some politicians, such as Vermont senator and Democratic presidential candidate Bernie Sanders, have suggested that taking away tax-exempt status would be a step too far.
Only time will tell, however, whether this short-term promise will last. Looking at the majority’s lack of support for religious freedom, the dissenters’ warnings, and political leaders’ confusion over the issue, the effects of Obergefell do not bode well for faith-based institutions.
As people of faith who value protection for all faith-based organizations, particularly those who do the good work of feeding the poor and educating the next generation, we must be vigilant to ensure that the mournful predictions do not come to pass. The response of government leaders does not provide much hope, but as a nation dedicated to preserving religious freedom even for dissenters, we can continue working to protect our first freedom of religious liberty.
Be sure to come back next week to read the last part, where I will look at the effect of Obergefell on people of faith who run small businesses.