Same-sex marriage and the threat to colleges’ tax-exempt status. May 18, 2015, Vol. 20, No. 34 • By TERRY EASTLAND
The most notable exchange during the argument last month in the same-sex marriage case before the Supreme Court, Obergefell v. Hodges, likely occurred between Justice Samuel Alito and Solicitor General Donald Verrilli.
“Well, in the Bob Jones case,” began Alito, “the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating.” In fact, as Alito and Verrilli of course know, what the Court held in Bob Jones was that the Internal Revenue Service acted within its authority in revoking the school’s tax-exempt status. Alito continued: “So would the same apply to a university or a college if it opposed same-sex marriage?” That is, would the IRS be acting within its authority if it decided it could revoke the tax-exempt status of a school opposed to same-sex marriage?
Verrilli’s response was, “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.”
What to make of that answer, which Verrilli has yet to clarify, and probably never will?
While unlikely in the extreme, what if, for Verrilli, the reason “it is going to be an issue” lies in doubts inside the administration about the validity of the Bob Jones ruling? What if Verrilli believes the case was wrongly decided and that Justice William Rehnquist, writing in solitary dissent, had the better argument—that in fact the IRS exceeded its authority in the matter?
Some background: Until 1970 the IRS granted tax-exempt status to private schools, including Bob Jones University, regardless of whether they had racial admissions policies. A year later, as a result of litigation in which the agency was prohibited from extending tax-exempt status to private schools in Mississippi, the IRS changed its position in a “revenue ruling”: Henceforth, the agency would not approve tax-exempt status for any school without a policy against racial discrimination.
Enter Bob Jones University, which prohibited interracial dating and marriage; the school denied that those practices, which it said were based on its religious beliefs, were discriminatory. When the IRS advised the university of its intention to enforce the new ruling, and thus challenge the school’s tax-exempt status, Bob Jones initiated its lawsuit, which dragged on for a dozen years before ending in 1983 with an opinion for the Court written by Chief Justice Warren Burger.
The Court approved the agency’s construction of the tax code: that an entity granted a tax exemption must be a charitable institution, and that under the common law of charitable trusts an entity that acted contrary to public policy was not charitable. The Court also affirmed the agency’s judgment that eradicating racial discrimination in education was a “fundamental public policy.” Furthering that policy, said the Court, “substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of [its] religious beliefs.” That Congress refused to intervene, the Court said, was proof that it approved of the agency’s construction of the statute. “We therefore hold that the IRS did not exceed its authority when it announced its [new] interpretation” of the tax code.
Rehnquist agreed that there was such a fundamental policy against racial discrimination, and that it could indeed be enforced against “educational institutions that promote racial discrimination”—but only if Congress said so. And that was the problem: “Unlike the Court, I am convinced that Congress simply has failed to take this action.” The IRS took the action, with an interpretation of the tax code that gives it “a broad power which until now Congress has kept for itself.”
Again, it is hard to imagine that administration lawyers actually question Bob Jones. After all, they work for a president notorious for his frequent resort to unilateral executive action, spurning Congress time and again. Yet the speculation is a useful exercise, for if you agree with Rehnquist in Bob Jones, then the right venue for deciding whether “a university or a college . . . opposed to same-sex marriage” (to use Alito’s words) could be denied tax exemption is Congress, not the IRS. Not incidentally, the tax code says nothing about same-sex marriage.
A clear-eyed view of Jeb Bush as governorFeb 9, 2015, Vol. 20, No. 21 • By TERRY EASTLAND
Our first national government—the one established by the Articles of Confederation—was notoriously weak. Congress wasn’t much good at administering the laws it passed or at conducting foreign affairs. The government lacked what the Framers of the Constitution said it sorely needed: energy.
The United States and its Constitution, one and inseparableDec 8, 2014, Vol. 20, No. 13 • By TERRY EASTLAND
This, the “concise edition” of Liberty and Union, is an abridgment of a larger, two-volume work. It contains a glossary of legal terms (“writ,” for example, is a court order), tables of cases, a list of the 118 (so far) justices of the Supreme Court, and the texts of the Declaration of Independence, Articles of Confederation, and Constitution.
Oct 13, 2014, Vol. 20, No. 05 • By TERRY EASTLAND
During his confirmation hearing in early 2009, Eric Holder declared he would not politicize the Justice Department. Yet throughout more than five years in office, the attorney general has done just that—without objection from President Obama, who obviously paid no heed to Holder’s promise. Indeed, it is manifestly clear that Holder and Obama approach law the same way: Where necessary, it may be manipulated—or ignored—in pursuit of political ends.
Jul 14, 2014, Vol. 19, No. 41 • By TERRY EASTLAND
On a wide range of matters, including health care, energy, immigration, foreign policy, and education, says House speaker John Boehner, President Obama has ignored some statutes completely, selectively enforced others, and at times created laws of his own, thus failing to “take care that the laws be faithfully executed,” as Article II of the Constitution requires of a president.
In government contracting, some are more equal than others. Jun 16, 2014, Vol. 19, No. 38 • By TERRY EASTLAND
In our episodic “national conversation about race,” perhaps it is time to take notice of Rothe Development Corporation of San Antonio, Texas, which, you could say, has been having its own conversation about race—in the federal courts. Rothe is a government contractor that has now brought two lawsuits challenging racial preferences in federal contracting, winning the first, which was filed in 1998 and decided in 2008, and hoping, of course, to win the second, which was filed in 2012 and could go to the Supreme Court while President Obama is in office.
Terry Eastland, Southern fried chicken manJun 9, 2014, Vol. 19, No. 37 • By TERRY EASTLAND
I happen to like fried chicken. I like just about everything about it. I like being in the store and looking for the right chicken. I like cutting up the chicken, and then preparing the pieces for frying, and then frying them in the big pan we use for that purpose. And I like eating my portion. I can’t say I like disposing of the grease, a messy business, but then the meal I’ve just eaten has usually been worth it.
Hosted by Michael Graham.11:00 AM, Apr 24, 2014 • By TWS PODCAST
THE WEEKLY STANDARD Podcast with executive editor Terry Eastland on the recent ruling by the supreme court in Schuette v. Coalition to Defend Affirmative Action.
The Senate minority leader seeks majority opinions. Apr 28, 2014, Vol. 19, No. 31 • By TERRY EASTLAND
"This is the best Supreme Court, if you’re interested in a free society and in the ability of Americans to participate in the political process with a minimum amount of government restrictions. In fact, this is a great Supreme Court.”
Of course, President Obama, this great Supreme Court’s greatest scold, didn’t say that. Senate minority leader Mitch McConnell did, in an interview last week in the wake of the Court’s decision in McCutcheon v. Federal Election Commission (FEC).
The B&A Podcast is hosted by Philip Terzian.4:45 PM, Mar 18, 2014 • By TWS PODCAST
THE WEEKLY STANDARD Books & Arts Podcast with Philip Terzian, on the March 24, 2014 issue of the magazine's B&A section. Joining him is executive editor Terry Eastland, to discuss his recent review, Ordeal by Congress, which was a memoir by Judge Leslie Southwick on his road to confirmation to the federal bench.
The human cost of advice and consent. Mar 24, 2014, Vol. 19, No. 27 • By TERRY EASTLAND
Leslie H. Southwick of Jackson, Mississippi, is (or rather, was) “the nominee,” and here provides an account of his quest to become a judge on a particular federal court, the U.S. Court of Appeals for the Fifth Circuit, which sits in New Orleans. President George W. Bush nominated him to that court in January 2007.
The coming war over presidential appointmentsFeb 24, 2014, Vol. 19, No. 23 • By TERRY EASTLAND
President Obama and Senate Democrats have gone to great lengths to secure the appointment of executive-branch officers and judges and thus help advance his policies and programs. Obama has made recess appointments in a way no president before him did, an action now being challenged in National Labor Relations Board v. Noel Canning, which offers the Supreme Court the first occasion in its long history to opine on the until-now obscure recess appointments clause.
Jan 27, 2014, Vol. 19, No. 19 • By TERRY EASTLAND
Under our Constitution, a government agency may not act beyond the authority given it by Congress. Indeed, as the Supreme Court has said, “an agency literally has no power to act . . . unless and until Congress confers power upon it.”
The principle is basic, but in a significant matter the Department of Housing and Urban Development under President Obama has ignored it, to say no worse. Fortunately, a lawsuit now moving forward in the nation’s capital promises to compel the agency to quit its conspicuous overreaching.
The (legal) case against Obamacare.Dec 23, 2013, Vol. 19, No. 15 • By TERRY EASTLAND
The biggest political story in our domestic politics since 2009 has been, as it will be for the foreseeable future, health care. One part of this story is ripe for telling now: the constitutional challenge to the Affordable Care Act (ACA)—also known as Obamacare. That effort, you’ll recall, came in a series of lawsuits that few legal experts thought had much chance of succeeding. But victories in the lower courts led to new appraisals and a growing sense that, in the Supreme Court, the challengers just might win.