Is Beto O’Rourke a double agent, insinuated into the Democratic presidential race by Christian conservatives? Of course not, but his suggestion that religious groups should lose their tax-exempt status for opposing same-sex marriage is exactly what such a plant would say.
On Thursday night’s CNN Equality Town Hall, moderator Don Lemon asked the former Texas congressman: “Do you think religious institutions like colleges, churches, charities — should they lose their tax-exempt status if they oppose same-sex marriage?”
O’Rourke answered “Yes.” He added: “There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us. So as president, we’re going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans.”
This seemed to take the candidate well beyond the gay rights agenda enunciated on his campaign website, which doesn’t mention revoking the tax-exempt status of religious groups that oppose same-sex marriage. (It does say: “Freedom of religion is a fundamental right, but it should not be used to discriminate.” It also promises that O’Rourke would reverse the Trump administration’s “attempt to expand religious exemptions in order to enable discrimination or harm others.”)
Neither Lemon’s question nor O’Rourke’s answer distinguished between civil marriage and religious marriage. But some religious organizations have expressed strong views about whether even civil marriage should be available to same-sex couples.
For example, after the Supreme Court held in 2015 that the Constitution required that same-sex couples be allowed to marry, the U.S. Conference of Catholic Bishops complained that the ruling “redefines marriage in the law throughout the entire country, changing thousands of laws regarding marriage, family and children and threatening religious freedom in numerous ways.”
So it would seem from O’Rourke’s answer on CNN that if he had his way the Catholic Church would lose its tax-exempt status unless it changed its teachings about marriage. (On Friday, the Dallas Morning News reported that an aide to O’Rourke said that the candidate was talking not about teachings or beliefs but about “religious institutions that take discriminatory action.” Would that include a Christian college’s refusal to allow same-sex married couples to use married student housing? What about lobbying by the Catholic bishops against legislation allowing same-sex married couples to adopt children?)
The idea that the legalization of same-sex marriage would lead to curtailment of religious freedom long has been floated by conservatives. In 2014, a year before the Supreme Court’s decision, New York Times columnist Ross Douthat anticipated such a ruling and described a possible future in which religious schools and colleges opposed to same-sex marriage “would receive the same treatment as racist holdouts like Bob Jones University, losing access to public funds and seeing their tax-exempt status revoked.”
Bob Jones University, a Christian institution in South Carolina, lost a 1983 Supreme Court case in which it appealed the Internal Revenue Service’s decision to revoke its status as a tax-exempt charity because of its (supposedly biblically based) ban on interracial marriage and dating. The court said the college’s rules violated a “national policy to discourage racial discrimination in education” that had been endorsed by all three branches of the federal government.
The Supreme Court might react differently if the IRS under a President O’Rourke tried to strip the Catholic Church of its tax-exempt status for opposing same-sex marriage. One issue would be whether there is a “national policy” in favor of same-sex marriage, given the fact that marriage equality exists in most states because of judicial, not legislative, action.
Actually, the court might be spared passing on that question. If an O’Rourke administration did move to revoke the tax-exempt status of religious groups that opposed same-sex marriage or discriminated against same-sex couples, Congress would likely step in. Even with no such rulemaking on the horizon, legislation was introduced in the last Congress to prevent the government from penalizing institutions for a belief that “marriage is between one man and one woman.”
So the odds against what O’Rourke is proposing seem long. But in answering “Yes” to Lemon’s question, he has enabled religious conservatives to claim vindication for their apocalyptic view that marriage equality inevitably will result in an erosion of religious freedom. And there is now a Democratic presidential candidate they can cite for that proposition.