During oral arguments before the Supreme Court about gay marriage this exchange created a stir:
Could religious institutions lose tax-exempt status over Supreme Court’s gay marriage case?
During oral arguments, Justice Samuel Alito compared the case to that of Bob Jones University, a fundamentalist Christian university in South Carolina. The Supreme Court ruled in 1983 the school was not entitled to a tax-exempt status if it barred interracial marriage.
Here is an exchange between Alito and Solicitor General Donald B. Verrilli Jr., arguing for the same-sex couples on behalf of the Obama administration.
Justice Alito: Well,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. So would the same apply to a university or a college if it opposed same-sex marriage?
General Verrilli: 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 it is going to be an issue.
"I don't think I can answer that question without knowing more specifics..."?!? My goodness, wasn't it only yesterday (OK, Monday) I read this tribute to the plaintiff's counsel in the NY Times?
WASHINGTON — In the months leading to Tuesday’s Supreme Court arguments on same-sex marriage, teams of gay rights lawyers and their allies have held countless strategy sessions, drafted scores of briefs and participated in intense moot courts.
Their relentless preparation has two goals. One is to win. The other is to win big.
And it is not as if this question came utterly out of the blue - Ross Douthat is masterfully insightful, but he also puts his idea in print, and he (no doubt among others) floated this "Bob Jones" question a while back.
From which I infer that some version of this question was expected and some version of "I'd rather not speculate" was the preferred response. I further infer that the planitiffs have no intention of going on record today with a restrictive view of the limits of gay marriage rights; surely some factions within their coalition have every hope of going after Big Religion, ASAP.
With the further disclaimer that I am not a high priced attorney with months of prep under my belt, here is my instant response: in the case of a ban on inter-racial dating and marriage, Bob Jones University would have found very little mainstream religious support for their view. On the other hand, at this moment in time there is mainstream religious opposition to gay marriage.
So, in balancing the rights of a religious outlier like Bob Jones U against the governmental goal of promoting racial equality, one could imagine the court decision we got (which was 8-1). On the other hand, a different balance might strike a court as appropriate if the religious view was more widespread. Right now there are six Roman Catholic justices - won't some of them defend their Church?
But defend them from what, exactly? It is not as if colleges perform marriages, or are opposed to people living with unrelated member of the same gender (the term is "roommates").
Ross Douthat stretches a bit in looking for an issue:
1) Should religious colleges whose rules or honor codes orcovenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?
Brigham Young is one of the linked schools, and FWIW, they made news in 2011 for booting one of their star basketball players based on his relationship with his girlfriend. However, other issues might include benefits of access to married couples housing:
2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered?
I would guess that a suitable test case will be difficult yet inevitable.