Marriage Equality Could End Up Costing Religious Colleges A Lot of Money

June 27th 2015

Alex Mierjeski

Friday's historic Supreme Court ruling, which legalized gay marriage in all 50 states, will have many trickle-down effects for same-sex couples beyond, simply, a guaranteed right to marriage equality under the law. The legal and financial benefits that come with having a legal spouse are just a few examples.

But boons for same-sex couples are worrying others who also face the ripple effects of Friday's landmark decision, as the New York Times' Laurie Goodstein and Adam Liptak reported earlier this week.

With Friday's ruling, administrators at conservative-leaning religious schools across the country say they are facing a tough decision: rethink policies banning same-sex relationships and housing or be stripped of their tax-exempt statuses for violating a "fundamental national public policy," a consequence the Times explains stems from a 1983 Supreme Court ruling that gave the Internal Revenue Service the ability to strip schools of that status for prohibiting interracial relationships.

Earlier this month, representatives from more than 70 schools wrote to Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker John Boehner (R-Ohio) to express concern over what they saw as an impending attack on their religious and moral freedoms. Their concern, they wrote, stemmed from an exchange between U.S. Solicitor General Donald Verrilli and Justice Samuel Alito during oral arguments for Friday's case back in April, when both men agreed that institutions' tax statuses were "'going to be an issue'" should the court rule with the plaintiffs.

"The implications of such a stance are far-reaching and would affect religious schools from grades K-12, colleges and universities, theological seminaries and graduate schools, and any other religious- or non-religious-based educational institution in the United States that holds to natural marriage," they wrote.

Legal scholars interviewed by the Times were apprehensive to lend full-fledged credence to religious institutions' worries, noting that while concerns about losing tax-exempt statuses weren't necessarily misplaced, they may be overblown in the short-term: Any current or near-future administration would be unlikely to go after a religious institution's tax-exempt status because of same-sex bans, especially given how ubiquitous they are.

Still, some scholars told the Times that short-term political predictions, at least, likely held some water.

"Although many people insist that this will not happen...[institutions] tend to rely on political predictions – which are probably accurate, in the short term – and not on in-principle arguments or distinctions," said Richard Garnett, a Notre Dame law professor.

The 1983 case that could give the possible basis to strip schools of their tax statuses ruled that Bob Jones University in South Carolina discriminated on the basis of race with policies that required "partners in an interracial marriage," "students who date outside their race," and anyone "advocat[ing] interracial marriage" to be expelled. But the Times notes that while the school violated congressional bans on racial discrimination, sexual discrimination has no such protection, and according to Ira C. Lupu, a law professor at George Washington University, "[the] Bob Jones [case] has never been extended to any context other than race," he told the paper.

While religious schools and institutions may be guarded in the immediate wake of Friday's ruling, the Times notes that some schools' policies resemble the interracial bans at Bob Jones. Brigham Young University, for example, prohibits not just "sexual relations between members of the same sex, but all forms of physical intimacy that give expression to homosexual feelings" in its honor code. Given the nature of the Bob Jones case, parallels between racial and sexual discrimination come to the fore, and just as Bob Jones was as an outlier clinging to foregone notions of race relations, religious institutions worry, perhaps for good reason, that their moral codes could soon be read in the same light.