Written by Don Byrd
[UPDATE 6/26: The Supreme Court ruled same-sex couples have a constitutional right to marry under the 14th Amendment in a 5-4 opinion. The Justices sparred over the issue of the ruling’s potential religious liberty impact. Read more here.]
Before the end of this month – maybe as early as Friday morning – the U.S. Supreme Court will issue its ruling on the constitutionality of same-sex marriage bans. With nothing but waiting to do, experts and advocates have taken to speculating, not just on the outcome, but its potential impact.
In the NYTimes, a report yesterday focused on the fear of some religious educational institutions that their tax-exempt status may be in jeopardy over school policies regarding same-sex couples, should the court declare bans on same-sex marriage unconstitutional. Their concerns echo an exchange in the Supreme Court’s oral arguments in which the government’s solicitor general acknowledged that tax-exempt status “is going to be an issue,” in response to a question from Justice Alito.
As the BJC’s Brent Walker wrote following those arguments, however, that issue has limits:
The solicitor general is right. But one thing is for certain: the Bob Jones decision should not threaten the tax-exempt status of houses of worship and other pervasively sectarian organizations. The Supreme Court was meticulously careful in Bob Jones to limit its decision to “religious schools — not … churches or other purely religious institutions; here the governmental interest is in denying public support to racial discrimination in education.”
The extent to which Bob Jones might apply to sexual orientation instead of race and to other religious affiliates besides education institutions is an issue yet to be resolved. But the tax-exempt status of churches should not be in jeopardy.
Even with respect to religious schools, law professor and church-state expert Douglas Laycock argues it would be “unimaginable” that tax exemptions would be denied anytime soon based on policies regarding homosexuality. Other advocates disagree. Whenever the decision is issued, guidance from the court on this issue is worth watching.
