Same Sex Marriage impact on Private Religious Universities

November 11, 2004

People often say to those who advocate bans on same sex relationships- why do you care, anyway? How is it going to affect you if gays can be married? Here’s one proposition as to how:

Yesterday, Carey posed this question after debunking Irish Law’s “secular” policy arguments against allowing SSM:

What I’m curious about is why Irish Law seems so afraid of equality. Is it because she fears that gays will demand that the Catholic Church sanction gay marriage? I haven’t heard of anyone threatening to do that. I don’t see how Catholic marriages are in any way threatened by the state’s recognition of SSM. Irish law is a good writer, and she seems very smart. I’d like to see her answer this question, if she can.
Since Carey no longer has comments available on his blog, I will attempt to answer this question for myself here. It is something I have thought about as a Mormon, since the Mormon stand on the same sex marriage issue is likely very similar to the Catholic stand.

In my view, the author of Irish Law and others similarly situated are not “afraid of equality” because they fear that “gays will demand that the Catholic Church sanction gay marriage.” Rather, they fear a more direct but subtle force which will bring pressure on churches such as the Catholic church to do just that- sanction gay marriage. That force is the United States government- both the judicial and the legislative branches. It seems obvious to assume that the government cannot force religion to sanction or perform gay marriages, so in this discussion I assume that without further review of the governing case law. However, precedent exists in our First Amendment jurisprudence to suggest that the government CAN bring great pressure to bear on religious institutions who, for religious reasons, refuse to participate in the social agenda of equality.

One case illustrating this is Bob Jones University v. United States, 461 U.S. 574 (1983). In that case, the IRS denied Bob Jones University a tax exemption as a non-profit religious school because although it admitted minorities, it practiced racial discrimination through its strict policies against interracial dating and the like. Bob Jones University, showing that its policies were based upon a genuine religious belief that the Bible forbade interracial dating and marriage, protested that this exemption denial constituted a violation of its rights under the first amendment’s free exercise clause.

The court, noting that “The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,” id. at 603 (quoting United States v. Lee, 455 U.S. 252, 257-58), held that the University could not be exempt from taxes even though its racist policies stemmed from sincere religious belief because “the Government ha[d] a fundamental, overriding interest in eradicating racial discrimination in education . . . [which] substantially outweigh[ed]whatever burden denial of tax benefits places on [the University’s] exercise of [its] religious beliefs,” and that “no less restrictive means [were] available to achieve the governmental interest.” Id. at 604 (citations omitted). The court further held that contributions to such schools were no longer tax deductible as charitable contributions. Therefore, a religious school which had a policy in place mirroring the religious beliefs of the institution and individuals sponsoring it had a substantial burden placed on it due to the compelling governmental interest in racial equality in education.

Many on the “religious right” may be concerned that the same thing might occur should the courts determine that same sex marriage is a constitutional right or the legislature bestow that right. I am certain that should same sex marriage be allowed, private religious universities such as my alma mater, Brigham Young University, would still consider same sex relationships to violate their honor codes (in that link, see especially the section governing conduct- all students must commit to living the honor code and live it or they cannot attend Brigham Young University) or bylaws or other university regulations. Since these schools would then be “discriminating” against same sex relationships by forbidding them amongst their students, they would likely be denied their tax benefits, which the Bob Jones University court noted “will inevitably have a substantial impact on the operation of private religious schools,” id. at 603-04, as well as on any donors whose donations would no longer be tax deductible.

This would directly affect people like the author of Irish Law or me who attend, have attended, will attend, will send children to, donate money to, or otherwise be affiliated with these private religious universities. First of all, if the universities could continue to operate under such a burden, then tuition would certainly rise substantially to cover the added tax burden. Compounding this, at the same time less people would likely donate money because their donations would no longer be tax deductible. Finally, those who do choose to donate money would no longer receive a benefit from doing so.

In fact, although this may argue the point a bit too far, it is also perhaps likely that tithing such as that donated to the Church of Jesus Christ of Latter-day Saints by members in good standing would no longer be tax deductible, since Brigham Young University is funded in large part by these tithes. (I wonder further if someday this burden would then be applied to all religious institutions directly outside the realm of education when, for example, the Church of Jesus Christ of Latter-day Saints refuses to perform same sex marriages in the temple. Probably not, but if there is a generally applicable law and neutral purpose, there is always Employment Division v. Smith, 474 U.S. 872 (1990) lurking out there… But that is a topic for another day.) In any case, the “substantial impact on the operation of private religious schools” of the added tax burdens would unquestionably affect all associated with these institutions.

Therefore, although Catholic marriages per se would not be “in any way threatened by the state’s recognition of SSM,” individuals such as the author of Irish Law, myself, and millions of others associated somehow with private religious schools would be personally affected by a constitutional right to same sex marriage or a legislative granting of that right.

Postscript: Perhaps the added tax burden is one which religious entities ought to bear for their religious beliefs regarding same sex relationships as members of a greater society grounded in equality. After all, the government is not preventing them from believing as they do, just making them internalize the societal cost of their beliefs. Then again, perhaps it is not a burden the religious institutions should bear. But this is a topic for another day…