For the past few weeks, many churches and preachers have hosted demonstrations on the Diag. While most of the protests have been fairly mild, there have been a few instances of more intense viewpoints coming to the forefront. Some people have come to Michigan’s campus to preach that those engaged in homosexual relationships must repent, lest they endure eternal damnation. While these figures have been rather innocuous, a debate surrounding these ideas has gained national spotlight. In early October, CNN hosted an “Equality Town Hall” with the Democratic presidential candidates. At one point moderator Don Lemon asked Representative Beto O’Rourke, “Do you think religious institutions like colleges, churches, charities, should lose their tax-exempt status if they oppose same-sex marriage?” To that O’Rourke responded simply, “Yes.” After the applause to his answer died down, O’Rourke added, “There can be no reward, no benefit, no tax break for anyone, any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us.”
There are two central questions that surround the debate over this issue: would it be constitutional and would it be moral?
There are two central questions that surround the debate over this issue: would it be constitutional and would it be moral? As far as the former, the Supreme Court has not made an explicit decision on whether such a measure would be constitutional. Nevertheless, there is precedent that could indicate it could be. The reasoning behind giving tax exemptions to religious institutions goes back to 1970, in the case Wolz v. Tax Commission of New York. In it, the Court ruled that these exemptions do not violate the First Amendment’s Establishment Clause because religion was irrelevant to their purpose. The reason the government issues the exemptions is not because of the religious nature of the institutions. Rather, it is to assist them in their carrying out of public benefits. In other words, because churches, schools, etc. provide social services such as charity and education, the government is justified in giving them tax breaks.
Later in 1983, the Court elaborated on Wolz’s “public benefits” doctrine. The case of Bob Jones University v. United States saw the IRS revoke the titular Christian school’s tax exemption. The reason for revoking Bob Jones University’s tax-exempt status was for a policy which prohibited interracial dating between students. The court ruled in favor of the IRS. The court’s reasoning was that churches could not provide public benefits if their beliefs contradicted a public policy. The case Loving v. Virginia legalized interracial marriage across the board, becoming official public policy of the United States. Because the University defied the ruling, they were disobeying the country’s public policy, so the revocation was justified.
The connection to O’Rourke’s comments is present in the fact that the legalization of same-sex marriage is an American policy. So, according to precedent set by the court, the policy could be constitutional. Justice Samuel Alito had this same concern during oral arguments for Obergefell v. Hodges, the case which legalized gay marriage. When he asked Solicitor General Donald Verrilli if churches and schools could suffer the same fate as Bob Jones, the Solicitor General indicated that it would be an issue.
The fact that there is a logical precedent for O’Rourke’s proposal should concern not just people of faith, but also all those who value freedom of association and freedom of religion.
The fact that there is a logical precedent for O’Rourke’s proposal should concern not just people of faith, but also all those who value freedom of association and freedom of religion. Such a policy would infringe upon these fundamental rights. Churches and their congregations are in a consensual relationship. If congregants dislike the policies of the church they attend, nobody is compelling them to stay. They are free to practice anywhere else. Additionally, O’Rourke’s rationale for his policy has broader implications than he seems to think. Notice the words he uses. He justifies his position because he claims that these institutions’ beliefs are detrimental to people’s “full human rights and full civil rights.” Private institutions are not governments; they have no obligation to recognize every civil right to which people are entitled. For example, a Muslim Imam has a right to free speech, but a Christian church is unlikely to give him time in the pulpit. Should the church lose its tax exemption for this decision? After all, according to O’Rourke, it has violated his First-Amendment right to free speech. The answer is no, because our rights end where others’ rights begin. Our human and civil rights are freedom from government, not freedoms against our fellow citizens. They do not give us license to force private institutions to provide them. I have a right to free speech, but I do not have the right to force others to give me a platform. I have the right to hold a job, but I do not have the right to force others to employ me.I have the right to marry, but I do not have the right to force others to perform my marriage.
There are obvious problems with holding private institutions to the same standards as public ones as the two are very different. This private vs. public distinction comes to prominence whenever the conversation of separation of church and state. Such a topic was ubiquitous during the adjudication of Obergefell. While the exact phrase is not present in the Constitution, the founders certainly believed in the principle. Contrary to popular belief, however, they were not concerned about religious fundamentalists wanting to impress their religious views on the public. The phrase was coined by Thomas Jefferson in his letter to Connecticut’s Danbury Baptist Association. He wrote that the Free Exercise and Establishment Clauses built “a wall of separation between church and state.” Jefferson was not admonishing a group of zealots who wanted to encroach on a secular state. Rather, he believed that the government had an interest in fostering religion, so he promised that the government would not infringe on people’s right to worship God. Now, however, many in government are willing to oppress church with state. O’Rourke’s proposal represents a blatant disregard for founding principles. The Founders created the Constitution because they believed that God wanted man to be free, but O’Rourke seems to want to do away with God-given freedom in the name of government compulsion.