When arguing before the Supreme Court, a lawyer normally takes pains to convince the Justices that ruling in his or her favor in that particular case would not have dramatic consequences elsewhere. In Hobby Lobby, for example, Paul Clement urged that exempting his clients from part of HHS's contraceptive mandate would not open the doors to a flood of other exemptions. Or in DC v. Heller, Alan Gura argued that the Court's recognition of the Second Amendment's personal right to own ordinary firearms would not entitle people to own "machine guns" or "plastic, undetectable handguns."
A similar dynamic was seen, sometimes, at yesterday's oral arguments in the same-sex marriage cases, Obergefell v. Hodges. Lawyers arguing that same-sex couples should have a federal constitutional right to state marriage licenses suggested that establishing such a right would not result in ministers being forced to conduct same-sex marriages. "No clergy is forced to marry any couple that they don't want to marry," the plaintiffs' lawyer, Mary Bonauto told Justice Scalia. "We have those protections" under the First Amendment.
But given that such concerns surround this case -- say, for wedding photographers or cake bakers -- it was rather stunning to see Solicitor General Verrilli leave open the door to what could be the most significant consequences to eventually flow from the creation of a constitutional right to same sex marriage: namely, that religious organizations could eventually lose their tax-exempt status if they do not embrace the new constitutional right.
Such concerns are based on the Supreme Court's approach in Bob Jones University v. United States (1983), where the Court held that the IRS could strip two private religious schools of their tax-exempt status because the schools maintained racially discriminatory policies abhorrent under the Fourteenth Amendment. Bob Jones University, for example, prohibited its students from inter-racial dating.
"Entitlement to tax exemption depends on meeting certain common-law standards of charity," wrote the Court; "namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." To receive a tax exemption, the institution must "demonstrably serve and be in harmony with the public interest." And because, in the aftermath of Brown v. Board of Education thirty years earlier, America had adopted "a firm national policy to prohibit racial segregation and discrimination in public education," neither the Tax Code nor the First Amendment allowed the schools to receive tax benefits while maintaining their repugnant racist policies. The Court's analysis was correct in that case, given how well-established and widely respected the constitutional right against racial discrimination was. But how would the IRS and courts apply such themes in other cases, involving other constitutional rights?
To that end, in recent years some have asked whether the Supreme Court's recognition of same-sex marriage as a fundamental constitutional right could have similar impacts on religious organizations that refuse to participate in or otherwise support same-sex marriage.
Liberal proponents of same-sex marriage rights have tried to downplay those concerns. Writing in Slate two years ago, Emily Bazelon argued that States' recognition of same-sex marriages would not affect religious organizations' tax-exempt status, at least not until "we’re as united about the pernicious nature of anti-gay discrimination as we are about racial discrimination." ("Maybe we should be there," she added, "But I don’t need to tell you we’re not." Not yet.)
But that is, of course, the core theme in favor of same-sex marriage rights: that a constitutional right to same-sex marriage is no less fundamental than a right to inter-racial marriage. It has been at the heart of same-sex marriage litigation for years.