If the Supreme Court finds there is a constitutional right to same-sex marriage next month, the tax-exempt status of any non-profit groups that refuse to embrace the movement could soon be on the chopping block.
Writing in a column for USA TODAY, Home School Legal Defense Association Chairman Michael Farris says religious and even non-religious non-profit institutions will likely be targeted by the government for holding to traditional standards on sex, marriage and morality.
“All of these entities are exempt from taxation under the same section of the IRS code. And even though churches can be exempt without application, their exemption can nonetheless be revoked,” wrote Farris. “Even if it takes the IRS years to begin the enforcement proceedings against such institutions, we can expect other fallout from this decision to begin shortly after the release of the Supreme Court’s opinion.”
The premise for this concern is rooted in a widely reported exchange during the Supreme Court’s oral arguments on marriage held on April 28.
“In the Bob Jones case, the court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?” asked Justice Samuel Alito.
“It’s certainly going to be an issue. I don’t deny that,” responded U.S. Solicitor General Donald Verrilli.
In a subsequent interview, Farris says the scrutiny would stretch much wider than just colleges and universities.
“The legal principle that was established in the interracial case from Bob Jones University is applicable to all non-profit organizations, not just colleges,” said Farris, who is also chancellor at Patrick Henry College, which accepts no federal funds.
He can easily envision a scenario where the federal government would investigate the school.
“We would not hire any professor that believed in that form of marriage or practiced it. If we stay true to our beliefs, we’re going to find our tax-exempt status threatened in the days ahead. That is a death knell for a lot of organizations,” said Farris.
And it’s not just colleges and universities. Farris says any religious non-profit group is at risk and Christian and private elementary schools, middle schools and high schools would find themselves in the IRS cross hairs.
Churches would be at risk of losing tax-exempt status as well.
Farris says a simple scenario for a Christian school getting in trouble would be for a legally married gay couple to attempt enrolling their child at the school. Many schools have parents sign a commitment to abide by the statement of faith, which may include language about marriage only being between a man and a woman. If the school denies enrollment to a student on those grounds, he says an investigation could easily follow.
But even if there are no issues with personnel or the families trying to get children into the schools, the curriculum could also trigger a tax-exempt status review.
“Just teaching out kids that homosexuality is a sin would be sufficient to bring these things into question,” said Farris.
In fact, he says a growing list of liberal activist academics don’t just want schools that teach biblical morality to lose their tax-exempt status but to be shuttered completely.
“Professors at Northwestern University, professors at George Washington University and at Emory have all opined that Christian schools and home schools that refuse to teach their kids a tolerant viewpoint should be closed down entirely, not just lose their tax-exempt status. They should lose the right to be able to teach children,” said Farris.
Many churches require membership based on a statement of faith and their affiliated schools require parents to acknowledge that students will be taught according to those principles. Historically, those voluntary associations have provided strong legal defenses.
“I was in a courtroom in the late 1970’s where an Orthodox Presbyterian Church was being sued for refusing to continue the employment of the church organist they found out was homosexual. In that day, the church won on the basis of religious freedom,” said Farris.
But he says those days are quickly ending.
“Unfortunately, the Supreme Court of the United States, in 1990 in a case called Employment Division v. Smith, through the free exercise of religion onto the constitutional trash heap. So I would expect that case goes the other way (now),” said Farris, who says this will worm its way into every major decision churches make.
“You can take it down as close to the heart of the church as you want: who you hire as your pastor, who you hire as your minister of music, who you hire as your youth director,” he said.
Just how big of a hit would non-profits take if they lost their tax-exempt status? Tax payments would not look much different, but donors would lose their tax benefits, and that includes private foundations required by their charters to give to IRS-approved non-profits. For many organizations, Farris says, the status loss would be a matter of life and death.
“It would really hurt on the giving side of things. Unless there was an army of people who would rise up and say, ‘I don’t care about the taxes. I want to give to you anyway,’ schools like Patrick Henry would end up having to close down,” he said.
If the Supreme Court does legalize gay marriage coast to coast, Farris says there is a short term way to preserve these non-profit institutions and a couple of long-term avenues as well.
First, he says Congress needs to look out for the viability of religious non-profits.
“Congress could pass explicit laws that would refuse to give this kind of implication to the internal revenue tax code. That’s going to take majorities in both houses of Congress and it’s going to take a friendly president to sign the law. So elections will matter,” said Farris, who still his his eyes on the ultimate goal.
“The biggest solution from my perspective is to get rid of the Internal Revenue Service and get rid of the whole income tax system and the inability of the government to regulate our lives through that,” said Farris.
