". . . and having done all . . . stand firm." Eph. 6:13


Legislating Same-Sex Marriage Would Threaten Tax-Exempt Status

August 12, 2022

With Senate Majority Leader Chuck Schumer (D-N.Y.) promising a vote on legislation that will codify same-sex marriage, it is worth reviewing the serious threats to religious freedom that have already arisen as this idea (and its underlying ideology) has been legitimized in recent years. Looming among these is the threat to the tax-exempt status of religious organizations that believe marriage is between one man and one woman.

The issue hit public consciousness at oral argument in Obergefell v. Hodges, when the Obama administration refused to rule out marginalizing and punishing faith-based organizations, telling the Court “it is going to be an issue” if a college or university wanted to retain its tax-exempt status and at the same time hold on to its adherence to natural marriage. This admission alone demonstrates the need to protect those whose views put them in the crosshairs of hostile government authorities. Since that time, the threat has only increased.

In recent years, many have been targeted by hostile government authorities for their beliefs about marriage. Religious associations have been forced to open their facilities. Judges have been barred from joining nonprofit organizations. State officials have shut down longstanding adoption and foster care providers, and have severed partnerships with Catholic Charities as it tries to serve needy children. States have used their power to punish counselors seeking to follow their consciences. In one case, a social worker had his job threatened and was forced to defend his license before a state board because he said that he believed kids should have a mom and a dad. In another case, USDA inspectors told a business owner he had to remove materials supporting natural marriage from his office breakroom or they wouldn’t sign off on his inspection. And there is no telling how many others have been silenced.

And now, just like the Obama administration, the Biden administration’s strategy to marginalize those with “unacceptable” beliefs is putting religious universities and nonprofits in the crosshairs. The administration is forcing schools to violate their beliefs on marriage and sexuality, and backing away from “vigorously” defending their religious freedom rights.

Before Obergefell was decided, we warned that if the Supreme Court redefined marriage by mandating it as a constitutional right, the impact would be significant. Sadly, this has turned out to be true, and the threats to religious freedom have only mushroomed since then.

Yet the erroneously-named “Respect for Marriage Act,” currently under consideration in the Senate, would only increase the pressure on religious freedom by reinforcing the court’s error in Obergefell and making it increasingly difficult to hold a dissenting view. In the case of Bob Jones University v. United States, the Supreme Court examined whether an institution’s actions were opposed to a “fundamental national public policy” as part of its determination over whether tax exemption could be denied to that institution. If the Senate passes this bill and it becomes law, the executive branch could argue that same-sex marriage is now a “fundamental national public policy” to justify its denial of tax-exempt status for schools and other entities that decline to affirm same-sex marriage. And under the Biden administration, this is a very real possibility.

Religious schools accomplish the difficult yet vital work of educating our young people. Their beliefs are integral to what they do, and they will not compromise their convictions for any tax benefit. The tax-exempt status they enjoy helps them to offer quality education to millions of young people, yet the push to exclude these schools from the public square and effectively eliminate the entirety of their good work simply because they believe marriage is between a man and a woman is only increasing.

Given the increasing challenges to religious freedom in recent years from the normalization of same-sex marriage and the sexual ideologies that have come along with it, religious universities and institutions that want to preserve their freedom will want to have their heads on a swivel.

Hostile government authorities have made it clear that they will use any possible method — whether federal contracting, school funding, and tax-exempt status — to establish and enforce their view of morality on the private religious sphere by redefining marriage.

Yet none of this changes the fact that religious organizations must be left free to determine their own beliefs, which cannot be co-opted by the state. Government should not be able to disqualify natural marriage supporters from doing good work in the public space simply because of their view on this moral issue. While schools may be the most immediate target, other nonprofits will be next. Eventually, even churches may be in the bullseye.

The “Respect for Marriage Act” makes all this more likely to occur — and occur sooner. No leader looking to protect religious freedom will want to be responsible for that.

Travis Weber, J.D., LL.M. is Vice President for Policy and Government Affairs at Family Research Council.