Roughly 15 years ago, I wrote about the collision between anti-discrimination laws and the free exercise of religion. I have been critical of the premise of the use of the tax code to effectively punish organizations that do not comport with the IRS’s view of good public policy. Now, presidential candidate Beto O’Rourke has fulfilled the prediction in the piece by promising to strip religious organizations of the tax exemption if they do not recognize same-sex marriage.
O’Rourke was asked by CNN’s Don Lemon “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” to the wild approval of the crowd. 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 on the rights of our fellow Americans.”
The use of the tax code to enforce such values is not new to Beto O’Rourke who recently promised also to revoke the NRA’s tax exempt status.
The use of the tax code to enforce such values was endorsed by the Supreme Court in the 1983 case of Bob Jones University v. United States. The Court ruled that revoking the tax exempt status of the university (which followed discriminatory principles) did not violate the First Amendment. While I found the policy of Bob Jone University deeply offensive, there remained the threshold free speech and free exercise questions. In 2005, I wrote about this case and the prospect of being used in this way:
“The debate over same-sex marriage represents a coalescing of rights of free exercise, free speech, and expressive association. With the exception of abortion, same-sex marriage is almost unique in blurring neat divisions between these rights. Many organizations attract members with their commitment to certain fundamental matters of faith or morals, including a rejection of same-sex marriage or homosexuality. It is rather artificial to tell such groups that they can condemn homosexuality as long as they are willing to hire homosexuals as a part of that mission. It is equally disingenuous to suggest that denial of such things as tax exemption does not constitute a content-based punishment for religious views. . . . The denial of tax-exempt status presents a particularly serious threat to these organizations and puts them at a comparative disadvantage to groups with contrary views.”
The fact that O’Rourke’s proposal received such enthusiastic support shows the danger of using the tax code to enforce majoritarian values. I have long proposed a blanket guarantee of tax exemption for non-for-profit organizations or no exemption for any organizations. What I find troubling is the use of the tax code for content-based discrimination between organizations.