Since April 28 when the U.S. Supreme Court heard arguments regarding same-sex marriage, I’ve been reading a lot about it. That’s because I was seeking to rationalize my own views on the topic. As faithful readers of this column are probably aware, I am not an opponent of same-sex marriage. I perceive denying same-sex marriage as a form of discrimination via sexual orientation. I perceive “marriage” as a dual issue – church and state. My view is that the state shouldn’t penalize same-sex couples by denying them the benefits of marriage – things like jointly filing taxes, naming beneficiaries on life insurance policies, credit worthiness and many others. These are government issues. Let the government decide them, free of religious interference. As for religion, each church and denomination would sort out its own belief system. Would they allow gays to marry in their church? Would they recognize or perform same-sex marriages? Would they ordain gay clergy? These are church issues. Let churches decide them free from government interference. In a scenario like this, gay people aren’t the objects of state discrimination and a church is not forced to accept anything contrary to its belief system. Everybody wins. I could see little harm because the issue seemed so clearly defined by the separation of church and state. While reading about the argument in the Supreme Court, most of what I saw seemed to support my contention of no harm. But then I came across something that was very troubling to me. Something that I never really considered when thinking about this issue. And while this brief exchange was just a tiny part of the Supreme Court argument, it was something that, in my view, has the potential to profoundly affect religious freedom. The odd thing about it was the fact that despite its undeniable significance, it was vastly underreported. I didn’t hear about this from ABC, CBS, NBC, CNN, Fox News, the Washington Post or the New York Times. I ran across it at a site called educationviews.com After a couple more Google searches, I found it in places like pjmedia.com, albertmohler.com, lifesitenews.com and blackchristiannews.com. These are not what I would consider mainstream. The problematic exchange I am writing about occurred between Justice Samuel Alito and Donald Verrilli, the solicitor general of the U.S. The solicitor general represents the Obama administration as its top attorney. Alito asked Verrilli if the court’s decision in this case would have any effect on the tax-exempt status of religious institutions. Alito cited the 1983 case of Bob Jones University v. United States. In that case, the Supreme Court ruled that the religion clauses of the First Amendment did not prohibit the Internal Revenue Service from revoking the tax-exempt status of a religious university whose practices are contrary to a compelling government public policy, such as eradicating racial discrimination. At issue was the university’s policy against interracial dating and interracial marriage. Alito then asked, “Would the same apply to a university or a college if it opposed same-sex marriage?” Here is Verrilli’s answer. Remember, this guy is the solicitor general for the U.S. and he is arguing in support of same-sex marriage: “You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.” I have to hand it to Verrilli. He was honest. He had to know his answer hurt his cause. The easy – albeit disingenuous – answer would have been something like, “Absolutely not Justice Alito, those are distinctly separate cases and I don’t believe this would ever be an issue.” An answer like that certainly would have helped assuage any concerns the good justice might have had with regard to the tax-exempt status of religious institutions being put in jeopardy by a favorable same-sex marriage ruling. But that’s not the answer he gave. Oh no, not even close. The Solicitor General of the U.S. – the Obama adminstration’s top lawyer – said, “it is going to be an issue.” He didn’t even say it “might” be an issue. He said, “It is – it is going to be an issue.” We can only take him at his word. Sure, you can oppose same-sex marriage, but if you do, you risk losing your tax-exempt status. Everybody knows what a devasting blow a ruling like that would be to religious liberty. Losing tax-exempt status has the potential to put religious institutions out of business. Let’s be clear. If churches were forced to pay taxes and could no longer accept tax-deductible donations most would cease to exist. Until I stumbled across this exchange between Alito and Verrilli, I assumed a ruling in favor of same-sex marriage from this particular Supreme Court. But now I am not so sure. Verrilli’s answer may have put a favorable ruling in peril. I am not sure a majority of this court is ready to potentially jeopardize the tax-exempt status of religious institutions across America. Time will tell. At this point, all we can do is hope that if the high court rules in favor of same-sex marriage, judicial restraint will prevail in any subsequent challenges to the tax-exempt status of religious institutions. I hereby plead guilty to abject naivité with regard to my previous analysis of the same-sex marriage issue. So much for my quaint little notion that both sides could simply co-exist under the cover of separation of church and state. To be clear, I still do not favor discrimination based on sexual orientation. But I never dreamed a favorable same-sex marriage ruling could be used as a hammer to pound religious institutions out of existence.
