Following June 26th, 2015 decision by the United States Supreme Court in Obergefell v. Hodges the rights of every American need to be re-examined. Certainly the LGBT community perceives it as a victory. The liberal media almost certainly sees it as an affirmation that same-sex unions are harmless and those who oppose it are narrow-minded. President Obama was pleased as well, stating, “We can say, in no uncertain terms, that we have made our union a little more perfect.” Really?
Lost in the celebrations were serious philosophical and legal questions that must be addressed. First and foremost: Did granting rights to one group come at the cost of another group’s rights? Specifically, what will be the impact on Christian institutions? The issues raised by the Court’s decision are hardly simple and the consequences are virtually impossible to quantify.
Before, engaging in the details, it should be noted that a religious organization is not solely dependent upon its tax-exempt status for survival. By definition, such organizations are based on Faith. Their survival ultimately depends on the devotion of its members as well as the blessings of God. Christianity cannot be eliminated by any governmental decree. Those who see the Christian Faith as an impediment to changes in prevailing public sentiment are gravely mistaken if they believe that new laws and financial sanctions can be imposed to break the back of Christianity in the United States. It’s considered politically correct to bash Christianity, because it is perceived as intolerant. However, those who actively and zealously seek to harm the Christian Faith are in reality the one’s who are intolerant. Christians are not out to impose their will upon others. The same cannot be said for those who oppose the Christian Faith.
In his dissenting opinion, Chief Justice Roberts noted that during the oral argument stage of the case, the Solicitor General was asked whether legalizing same-sex marriage would endanger the tax-exempt status of religious institutions. The answer was that it would put such status “in question.” What does this mean?
To answer that question, one must refer to the Internal Revenue Code Section 501(c)(3). Churches and religious organizations are currently granted tax-exempt status under this code. This means that a church, which has been granted 501(c) (3) status, does not pay taxes on the donations it receives. It also means that donations to the church are tax deductible. If such status were revoked, it would have serious financial implications.
The loss of 501(c)(3) status would present immediate practical problems, namely in the form of property taxes. A large church would be better equipped to handle the problems. In the case of a small church sitting on valuable real estate, it is quite conceivable that taxes may very well exceed donations. Unsurprisingly, some media organizations, such as Time magazine have already called for the revocation of 501(c)(3) status in regards to religious organizations. In a June 28, 2015 online article for Time, Mark Oppenheimer, a gay rights supporter, cites the Supreme Court’s decision regarding gay rights as a reason to reevaluate whether religious organizations should be entitled to 501(c)(3) status. Opponents of religion in general and Christianity in particular are likely to do as much as they can to ensure religious organizations lose tax-exempt status. To them it is a simple argument. It would be one thing if opponents of Christianity were content to leave the Faith alone. The fact is they are not. In a much broader context, the Supreme Court’s decision is akin to declaring ‘open season’ on Christianity.
According to the Internal Revenue Code, organizations may be eligible for 501(c)(3) status if their purpose is “charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals.” That sounds straightforward. Religious organizations qualify. Correct? Perhaps not. The problem is rooted in the definition of the term ‘charitable.’ Given the Supreme Court’s rather liberal interpretation of the law, there is great cause for alarm.
According to the Internal Revenue Code:
“The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.”
Opponents of religions that oppose gay marriage will almost certainly argue that the refusal to marry or recognize same-sex couples constitutes prejudice and discrimination. Further, they will argue that such refusal violates human rights. In addition, the very broad language used by the Court in justifying the majority opinion, could also lead one to argue that opposition to same-sex marriage leads to individual distress, increased neighborhood tensions, community deterioration, and yes, perhaps even an increase in juvenile delinquency. It isn’t even important whether any of these arguments make sense. The only relevant matter will be what the judicial system decides, whether it is logical or not.
Perhaps the most frightening aspect is the fact that the Supreme Court defined same-sex marriage as a RIGHT. It is an absolute decree. There is zero ambiguity concerning the Court’s interpretation. There is no distinction between the right of same-sex couples to marry and other basic rights such as the right to vote, the right to remain silent, the right to bear arms, etc… Consequently, a religious organization’s refusal to marry and/or recognize same-sex couples, could very well mean forfeiture of tax-exempt status. Per the Internal Revenue Code itself, religious organizations enjoy tax-exempt status based on a loosely defined concept: charity. The decision of the Supreme Court regarding same-sex marriage is unambiguous. From a tax-exempt standpoint, religious organizations are dependent upon a loosely defined concept, charity, which will almost certainly be challenged by invoking the Supreme Court’s definitive proclamation.
Aside from the aforementioned issues of property taxes, the sudden revocation of tax-exempt status could lead to other serious issues. According to Title 26 of the Internal Revenue Code, the government can begin a ‘church tax inquiry’ if ‘an appropriate high level Treasury official reasonably believes’ the Church doesn’t qualify as tax-exempt. Therefore, if a lawsuit or other court case is brought against a religious organization based on its refusal to perform and/or recognize same-sex marriages, and the Supreme Court rules against the religious organization, it would mean that many churches would suddenly become taxable. It is and should sound horrifying. In essence, the government has the authority to audit a church it no longer deems tax-exempt due to its theological doctrines. It would take very little effort on the part of the government to target certain churches. Christian organizations do not, nor should they ever, have to make a secret of their stance on certain issues. It would be easy to identify and single-out religious organizations opposed to same sex unions. It would also be equally as easy for the government to seize the financial records of a religious organization and tax it accordingly.
The next question then becomes the manner and as well as the extent of the tax imposed on a religious organization. Such organizations may be taxed not only on the current year, but prior years. If that is the case, even large churches with affluent members may be unable to pay the tax bill. Therefore, what can religious organizations expect?
There is precedent for government seizure of a church. On February 15, 2001 federal marshals seized Indianapolis Baptist Temple for failure to pay $6 million in taxes. The church argued that it was not obligated to withhold federal income and Social Security taxes from its employees. It also renounced its own tax-exempt status in 1983. It is not the intent of this article to address the issues surrounding that situation and it should be emphasized that this particular church did not wish to be considered 501(c)(3). Further, the tax debt was accumulated over a long period of time. Nevertheless, it did mark the first time in American history a church had been seized and its property sold to satisfy a tax obligation.
Now that precedent has been established for the seizure of a church, religious organizations currently refusing to endorse same-sex marriage could be placed in the exact same situation as Indianapolis Baptist Church, but for entirely different reasons. It is not hard to imagine religious organizations facing enormous tax debts. If religious organizations lose tax-exempt status because of the Supreme Court’s ruling, the seizure of churches by the government may become an every day occurrence. The financial incentive is definitely a factor that needs to be considered. Christian Colleges and Universities that currently enjoy tax-exempt status, may lose such status if the court’s rule that the polices of said schools violate 501(c)(3) guidelines. Some of these schools reside on valuable real estate. The additional local real estate tax revenues which could be generated by revoking the 501(c)(3) status of such organizations would be enormous. Further, in terms of donations to churches and other religious organizations, if such donations were no longer tax-deductible on a person’s individual income tax return, it would result in a higher tax liability to individuals, the cumulative effect of which would be gigantic in terms of additional tax revenue collected by the IRS.
The Supreme Court’s ruling and dissenting opinions in Obergefell v. Hodges can be found HERE.
One can gain many insights regarding the impact this case will have by reading the reasoning behind the majority opinion. In writing the majority opinion, Justice Kennedy first discussed the foundations on which marriage is based. Did he cite any of the Founding Fathers? No. He turned to Confucius and Cicero for guidance. Next, he discussed how concepts of marriage have changed. For example, modern marriages are based on a mutual desire between a man and a woman to marry, whereas in the past, arranged marriages were once commonplace. Kennedy cites ‘changed understandings of marriage.’ He uses that line of reasoning to conclude that the concept of same-sex marriages “are characteristic of a Nation where new dimensions of freedom become apparent to new generations.” Kennedy then argues that “cultural and political developments” created an atmosphere that led to “shifts in public attitudes.” At the end of his formal ruling, Kennedy states that religions will be protected by the First Amendment.
Taken together, one can infer the following from the majority opinion. First, the definition for marriage, in the context of American law, is now based on individuals who had nothing to do with neither the establishment of the Constitution nor the prevalent religion of the Founding Fathers. Second, marriage is considered an evolving process. If one stops to ponder this, there is clear reason for alarm. Christianity (and other major religions) is based on sacred texts and teachings. To a Christian who feels that the Bible does not condone homosexuality, that belief isn’t subject to change. However, the government now endorses the concept that marriage is a continually evolving concept. The teachings of a particular Faith however are not constantly evolving. This creates a major disparity. Therefore it is ludicrous to believe the First Amendment will sufficiently protect religious beliefs. It is therefore perfectly reasonable to assume that the EXERCISE of religious doctrine will be impeded.
In the dissenting opinion Chief Justice Roberts acknowledges this reality: “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority.” Roberts highlights the basic reason why all Americans should be alarmed by the Supreme Court’s decision. In this case, the judicial branch essentially acted as though they were the Legislative branch. The Court essentially overstepped its bounds and imposed its own ideology on all Americans. This violated the democratic process. Had same-sex marriage been recognized universally through the legislative process, such legislation could have included specific provisions to protect religion. Instead, it now leaves religious convictions, specifically the free exercise thereof, at the mercy of the Court. Justice Scalia stated the situation in even more frightening, yet clearly accurate terms: “The Ruler of 320 million Americans, coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” Scalia argues the most basic of American freedoms, the reason why we fought the Revolutionary War, has been lost and that is the freedom to govern ourselves. Scalia makes an excellent point when he observes that the nine members of the Supreme Court don’t even reflect the population of the United States. Eight of the nine Justices are from east or west coast cities. The vast part of the United States which sits in between each coast is essentially unrepresented.
How should religious organizations react in the face of such a potentially harmful decision?
In contrast to President Obama’s rather naive observation that the Union has been better by the Supreme Court’s ruling, the exact opposite has occurred. The Union has been made far less democratic. Further, churches and religious organizations themselves cannot actively participate in the political process without either violating or seriously jeopardizing their 501(c)(3) status. In the end it will be up to individual Christians to take up the fight.
There is a mechanism in place to redress the problems created by the Supreme Court’s unilateral abuse of power. If the United States is to remain a bastion of liberty, massive change needs to occur. Fortunately, the Constitution of the United States provides guidance. While there have been proposals and legislation at both the state and federal levels to protect religious liberty, one must not also forget that the Supreme Court can easily strike down such laws. In addition the Supreme Court’s decisions are final. The only ways to overturn a Supreme Court ruling are to wait for its composition to change as old justices retire and new ones join, which could result in the Court overturning one of its prior decisions, or to pass a Constitutional Amendment. Therefore, it is time to for two Constitutional Amendments. The 28th Amendment to the Constitution should be added to specifically address religious liberty. This would include language that grants Churches and other religious organizations the right to define their own doctrines without fear of lawsuits, criminal prosecution, or the loss of tax-exempt status. Obviously, this concept would have to be refined to prevent unintended abuse, but the necessity of such an Amendment has been created by the Supreme Court. This Amendment should not be enacted to make same-sex marriage illegal. Its sole purpose is to ensure that new rights granted to one group do not infringe upon the rights of another group. The 29th Amendment should be added to place limitations on the United States Supreme Court. The manner in which this Amendment should be written should not seek to change the balance of power between the three branches of government, but it should prevent the Supreme Court from acting as a legislative, not judiciary body. Absolute power corrupts absolutely and the Supreme Court has recklessly asserted more power than it was ever intended to wield. It is in the best interest of ALL Americans to make sure it doesn’t happen again.