Some members of Congress are rushing to enact legislation to deal with a supposed threat to religious liberty posed by the Supreme Court’s ruling in favor of same-sex civil marriage. But the grandiosely titled First Amendment Defense Act is unnecessary and could allow discrimination against gays and lesbians.
The bill, introduced by Rep. Raul Labrador (R-Idaho) and Sen. Mike Lee (R-Utah), says that the federal government “shall not take any discriminatory action against a person, wholly or partially 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, or that sexual relations are properly reserved to such a marriage.”
The bill defines “person” to include both nonprofit and for-profit organizations, and “discriminatory action” is defined to include not just the revocation of tax-exempt status but also the denial or termination of federal contracts. A persuasive analysis by the American Civil Liberties Union concludes that the bill would allow federal employees with objections to same-sex marriage to refuse to process tax returns or Social Security checks for gay couples.
These are significant reasons to oppose the bill. The only aspect of the legislation that is remotely defensible is its language about tax-exempt status. In 1983, the Supreme Court upheld a decision by the Internal Revenue Service to revoke the tax-exempt status of Bob Jones University because the religious school at the time prohibited interracial dating, a policy the court found to conflict with an “established public policy” against racial discrimination. During oral arguments in the same-sex marriage case, Justice Samuel A. Alito Jr. wondered whether a ruling for marriage equality would likewise place in jeopardy religious schools that opposed same-sex marriage — a concern echoed in a dissenting opinion by Chief Justice John G. Roberts Jr.
We believe that churches and other nonprofits shouldn’t lose their tax-exempt status because of their beliefs. As we observed in a 2013 editorial opposing a move in California to end the tax-exempt status of the Boy Scouts because of its policies on gays: “Tax-exempt status is not conferred on groups for having policies beloved by lawmakers or even a majority of a state’s residents. It is designed for nonprofits that provide a public benefit and that meet the requirements of reinvesting income into their programs rather than taking profits.” Notwithstanding the Bob Jones precedent, declaring religious beliefs or practices contrary to public policy raises 1st Amendment concerns.
But there is no sign that the IRS has any plans to try to revoke the tax-exempt status of religious schools that oppose same-sex marriage. In fact, as the ACLU notes, since 1983 the agency has made no move to disturb the tax-exempt status of religious schools that have policies against interfaith marriages or remarriage after divorce. A concern about the tax-exempt status of religious schools is no reason to enact the First Amendment Defense Act — and there are many other reasons to oppose the bill.