The Church Will Not Lose Its Tax-Exempt Status

Do I seriously have to say this? Again? Look, Obergefell does not mark the end of churches’ tax-exempt status. It’s just not going to happen.

I thought I’d put this bit of end-of-days hand-wringing to bed here, but apparently I didn’t do a good enough job, because it’s still out there, even in Mormon circles (most credibly repeated by Gene Schaerr, who included loss of church tax-exempt status as one of the potential consequences of of the Obergefell decision).

I don’t know Schaerr personally; I’ve heard through the grapevine that he’s an excellent appellate litigator. But appellate litigation is not tax practice, and does not generally provide any insight into the tax law. And Schaerr apparently doesn’t have any significant insight into the law of tax-exempt entities. 

Quick summary of the argument that Obergefell will inexorably lead to the loss of tax-exempt status by churches that oppose same-sex marriage: an entity that violates an established public policy does not qualify as tax-exempt. That’s established law. People who worry about churches’ loss of exemption allege that Obergefell sets the stage for same-sex marriage to be an established public policy, and thus, churches that oppose it, or won’t perform it, will not qualify as tax-exempt.

I already explained why that’s wrong (Constitution plus actual history with the provision), but I thought I’d give some evidence of how the IRS has used the public policy doctrine up until now.

In WestlawNext, I searched the “IRS Private Letter Ruling” database. (Why that database? Because the IRS tells an entity that it did not receive tax-exempt status or that it lost its tax-exempt status in a private letter ruling.) My search was:

advanced: “publc policy” AND “501(c)(3)”

The search pulled up 88 private letter rulings. The earliest was from 1978, and the most recent from 2015.

I then went through the rulings to see if they actually dealt with putative tax-exempt organizations that either were not granted tax-exempt status in the first instance, or that lost their tax-exempt status, as a result of violating public policy. That narrowed my list to just nine private letter rulings. You can see a spreadsheet listing all 88 rulings, and the nine responsive rulings (plus a little more information) here.

I was surprised by how few rulings were responsive, but it turns out the Westlaw private letter ruling database, while it technically goes back to 1950, only captures select rulings prior to 1977.[fn1] Most of the IRS’s disqualification of racially-discriminatory schools happened in the first half of the 1970s, so by the end of the 1970s, there weren’t as many tax-exempt discriminatory private schools. Still, 1978 to the present gives us the most recent 37 years of IRS actions, which seems like a pretty good indication of what the IRS actually does.

And, as the data make clear, the focus of the public policy requirement really was racially-discriminatory private schools. Which makes sense, because the Supreme Court expressly said in Bob Jones University that those schools violated an established public policy, so the IRS didn’t have to stretch to get there.

It’s also worth noting that, during these 37 years, not a single tax-exempt entity lost its exemption for violating public policy. Each of these nine cases involved an entity applying for tax-exempt status, and the IRS denying its application.

So, without further ado, what kinds of entities failed the public policy test? and how did those entities violate it?

Private Schools

Of the nine, five were racially-discriminatory private schools. A couple of the schools had written non-discrimination policies, but the IRS determined that their policies didn’t actually do anything. I just skimmed through the PLRs, but one of the schools, in its 40 years of existence, had never had a single black student, faculty member, or administrator. Another hadn’t in its 30 years of existence.

Polygamy

Two entities were denied exemption because of polygamy. One was applying as a church, the other as an educational institution that promoted polygamy. In both cases, the IRS pointed out that the U.S. had an established federal policy against polygamy dating back to the Reynolds decision of 1879.

Marijuana

One putatively educational and charitable entity was denied an exemption because of pot. I’m kind of fudging on this one, but it was too much fun to not include. The public policy doctrine goes hand-in-hand with the illegality doctrine: an entity that engages in illegal activity also does not qualify as tax-exempt. So an entity that plans on distributing cannabis cannot qualify as tax-exempt.

Pedophilia

So the last one is actually really icky, and inarguably violates public policy. An entity that planned to lobby for changes in laws that criminalize having sex with minors and taxing sexually-exploitative pictures of minors (srsly?) was denied an exemption on public policy grounds.

Conclusion

So there you have it: every applicant for tax-exempt status from the last 37 years that has had its application denied on public policy grounds. It just doesn’t happen, unless you’re a racially-discriminatory private school, or you engage in behavior that is illegal or that is considered really, really icky.

And no entity since 1978 has lost its exemption for violating public policy, much less any church. (In fact, there’s only one church in this list of 9 entities, and I suspect that’s the FLDS church which, had it been better-advised, would have not bothered applying, and just acted exempt.) Which is to say, the church will not lose its tax-exempt status.

And now I’m done.

[fn1] Why? Because they really were private until the early 1970s, when Tax Analysts started filing FOIA requests for them. As Westlaw explains, “Coverage begins with 1950 with selected documents through 1976. After 1976 the IRS made these letters public and we include all letters issued by the IRS from 1977 to date.”

Comments

  1. SteveDensleyJr says:

    So it sounds like you would acknowledge that BYU is in danger of losing its tax exempt status. Is that right?

  2. No. But I’ve already done that post.

  3. This makes my little tax lawyer heart sing with joy.

  4. Thanks, LT! I spent way too long looking through PLRs until way too late last night.

  5. Juliathepoet says:

    So with Utah’s polygamy law being overturned, is the church likely to lost it’s tax exempt status over its current opposition to polygamy? ;-)

  6. SteveDensleyJr says:

    Sam: I’ve reviewed your prior post now. You have acknowledged that denial of tax exempt status for BYU is a possibility, but you conclude it is a highly remote possibility. It seems that you argument, essentially, is that the political will does not currently exist to remove tax exempt status from religious schools that discriminate against gay couples. While that may be a satisfying answer to religious people who supported gay marriage, and who want to believe that no harm will come to the Church because of gay marriage, it is not very comforting to opponents of gay marriage who have seen the political winds in this country shift very quickly against them.

  7. Steve, no. I argue that historically, schools have lost their tax exemption for exactly one thing: racial discrimination. That loss must be historically situated—these discriminatory schools were working to allow white parents to opt out of newly-integrated public schools. In the meantime, all of the branches of the federal government had worked in a hard and unified manner to end school segregation. Thus, schools that discriminated were working to defeat a policy that the federal government was trying hard to implement.

    Irrespective of the prejudices and harm the LGBT community has faced, there is no similar history of segregation and integration in schools; moreover, marriage equality has absolutely nothing to do with it (just like interracial marriage was not a driving force in Bob Jones University or any of the other discriminatory schools). Obergefell, in other words, has absolutely nothing in common with Bob Jones University, and there is nothing that would lead a person to believe that schools that discriminate against gay students, or that oppose same-sex marriage, will lose their tax exemption. I mean sure, you can claim that one will lead to the other, but there is no objective connection to be made.

  8. I do know Schaerr personally, and your assessment is spot on.

  9. SteveDensleyJr says:

    Sam: Here’s a quote from your first article: “So could the church or BYU lose its tax exemption as a result of their policies on homosexuality? Yes.” You then proceed to explain that “in Bob Jones, the Supreme Court clearly held that religiously-affiliated schools can lose their tax exemptions if they violate a fundamental public policy.” You then conclude that since the public policy rule has only been used to revoke racially-discriminatory schools’ exemptions, religious schools that discriminate against gay people who are married have nothing to fear. Of course, we did not previously have a national public policy against discrimination against gay people who want to marry. Now we do. You say that the public policy rule has not been used to revoke single-sex schools’ exemptions. However, there is sociological research indicating that segregating the sexes in an educational setting has a beneficial result with respect to education. No one calls you a bigot if you propose that girls should have school room all to themselves. The same is not true with respect to opponents of gay marriage.

    Again, I see this as merely a matter of political will. The legal framework is now in place to remove the tax exempt status of religious schools as well as Churches. The only question is whether our political leaders want to use the power the Supreme Court has handed them. And something that makes religious conservatives especially nervous is that your optimism that religious institutions have nothing to fear is not shared by the Solicitor General of the United States when he was arguing in favor of gay marriage.

    “JUSTICE ALITO: Well, 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?

    GENERAL VERRILLI: 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.”

  10. A Non-E Mous says:

    Sam, I think you’re missing Steve’s point. Steve’s point — and I think it’s the core one most people are making. Given the shift in public opinion, many people think it is quite possible that legislation will be passed or regulations will be promulgated that requires schools to admit students who are married to someone of the same gender.

    So in 10 years, if Congress passed a statute that said schools that had policies against admitting married gay/lesbian students forfeited their tax extempt status and federal funding, what is your basis for saying BYU wouldn’t lose its tax-exempt status? Do you think there is some independent constitutional principle that acts as a barrier? Or is it, just as Steve says, a matter of political will?

    If there’s not some independent constitutional principle that protects BYU, that’s why Obergefell moves the needle toward BYU losing its tax-exempt status. It entrenches protection for gays and lesbians (to the small, vague degree that it did) as a matter of constitutional law. And that starts to make a future case against religious schools that discriminate against married gay and lesbian students look a lot like Bob Jones University.

    No serious legal scholars have said that the moment Obergefell was decided that the Church or BYU would lose its tax exempt status. And I don’t know any that have framed it that way. But all have realized that entrenching protections as a matter of constitutional law makes the future of accommodation for religious organizations more difficult and subject to the whims of the Supreme Court.

  11. Sam

    I appreciate the history lesson. However the slippery slope has by and large proven true on ssm. As a result I dont think that what has happened in the past has much relevance. A concerted effort is about to commence to stifle dissent on ssm. This effort will include an attempt to financially cripple the bastion of opposition to ssm which are churches.

  12. Steve, I expressly left religiously-affiliated schools out of this post because I didn’t feel like muddying the waters of what seems to be a popular freak-out right now: the issue of churches.

    I did say it could be that schools would lose their exemptions. But, in the very next sentence I said that we could revoke the First Amendment, move from an income to excise taxes, or eliminate married women’s ability to independently hold property. Just because something could happen doesn’t mean that it’s worth worrying about

    And yes, I’m familiar with what Justice Alito asked and how General Verrilli responded; I think Verrilli’s response was unfortunate, but it also has no legal consequence (it didn’t, for example, show up in the opinion); it was an off-the-cuff response to a difficult question, where neither the questioner nor the answerer was familiar with the history and use of the public policy rule.

  13. A Non-E Mous says:

    Also, the final paragraph of Bob Jones University seriously undermines your argument that, as gObergefell has nothing to do with a future case about married gay and lesbian students:

    “Petitioner Bob Jones University, however, contends that it is not racially discriminatory. It emphasizes that it now allows all races to enroll, subject only to its restrictions on the conduct of all students, including its prohibitions of association between men and women of different races, and of interracial marriage. Although a ban on intermarriage or interracial dating applies to all races, decisions of this Court firmly establish that discrimination on the basis of racial affiliation and association is a form of racial discrimination, see, e. g., Loving v. Virginia, 388 U. S. 1 (1967); McLaughlin v. Florida, 379 U. S. 184 (1964); Tillman v. Wheaton-Haven Recreation Assn., 410 U. S. 431 (1973). We therefore find that the IRS properly applied Revenue Ruling 71-447 to Bob Jones University.”

    Thus, a law that prohibits discrimination against gay and lesbian applicants generally could almost certainly, given the political will, be extended to BYU’s current status with respect to gay and lesbian students (i.e. permitted to attend so long as not engaging in any physical affection or in a legal relationship). And a court deciding the issue would almost certainly point to that last paragraph of Bob Jones University and then to Obergefell.

  14. bbell, since you made essentially the same comment on my last post, I’m not going to be terribly patient. The slippery slope is a logical fallacy; saying that things have changed with respect to same-sex marriage doesn’t have any effect whatsoever on tax policy. If you want to argue that Obergefell will lead to loss of exemptions for churches, bring it on. But you’re going to have to do better tham, “This will lead to a concerted effort to cripple churches.” Do you have evidence of that? Bring it.

    And while you bring it, explain to me how these putative activists will get past the First Amendment and the constitutional standing requirements. Otherwise, I’m not interested in your spinning conspiracy theories.

  15. And A Non-E Mous, yes, Bob Jones mentions Loving. But Loving doesn’t do any legal work there: it’s evidence of discrimination, but discrimination is impermissible in that case as a result of the segregation history I laid out. So yes, at some point in the future, a policy forbidding same-sex couples could certainly be touted as discriminatory; that doesn’t do any work toward an entity’s losing its exemption, though, unless you get to the first step. Which, as I’ve clearly and comprehensively explained, we don’t get to here.

  16. lastlemming says:

    Sam,
    After things have calmed down a bit, could you enlighten us as to the financial consequences of BYU (but not the Church) losing its tax exempt status? All I see is the cost of hiring additional lawyers and accountants to actually file the returns and the cost of educating alumni to make their contributions to the Church (via an expanded Perpetual Education Fund or something similar) instead of directly to BYU. But I don’t see BYU generating any taxable income on a regular basis.

  17. lastlemming, I’d be glad to try to do that—remind me in a week or two.

  18. A Non-E Mous says:

    Well it’s good to know we’ve re-enacted Volokh’s recitation of slippery-slope arguments almost to the tee. See http://www2.law.ucla.edu/volokh/slippery.pdf#page=39 . Let me ask you this: do you doubt that there will be federal legislation akin to Title VII that protects gays and lesbians within the next decade?

    The Constitutional entrenchment of protection for gays and lesbians seriously challenge to religiously affiliated institutions and individual adherence to religious principles going forward. Undoubtedly this was a mitigable situation 8-10 years ago. Religious organizations and the LGBT community should have come together to enact marriage equality and identity protections with strong conscientious and religious institution exceptions. Had they done so, I doubt we’d be in the the culture war that we are with the front lines filled with wedding couples on one side and bakers, photographers, and florists on the other.

  19. A Non-E Mous says:

    Lastlemming (and Sam): I think BYU would be more concerned about losing federal funds (which if the political will exists to revoke its tax exempt status based on this issue, federal funds would almost certainly go too).

  20. Have you seen this?…..it is already starting, you just don’t see it yet.

    http://liberallogic101.com/?p=28118

  21. Sam, why do you insist on messing with our apocalypse porn. I was just finalizing plans in my head to ride to BYU on a donkey and stand by Brigham Young’s statute with a shotgun in each hand to blow away the tax collectors who came to oppress my religious freedom. It was just getting good, because the co-eds were starting to fawn all over me. I’m going to pretend that I didn’t read this article and go back to my fantasies. CYa

  22. A Non-E Mous, Title VII already protects religion and gender, both of which can be contentious in the political sphere, and no entity has ever lost its tax exemption for discriminating on the basis of religion or gender. (Again, I point you to the OP.) I certainly thing sexual orientation will be included within Title VII in the foreseeable future.

    As to federal funds: this post is not about universities. It is also not about federal funding of universities. It is about church tax exemptions. I can’t opine on federal funding, because I don’t know, and I won’t opine further on university tax exemptions because that’s outside the scope of what I’m discussing here.

  23. Here’s another way to read this post:

    Q: Will BYU lose its tax exempt status?
    A: Probably.

  24. Sam. My own view is that clearly there is political momentum on this issue. Activists on the left immediately started talking about voiding tax exempt status. As far as the First Amendment is concerned it only protects the church if 5 scotus justices agree that it protects the church. Right now it depends on what Kennedy thinks the First Amendment protects. When Kennedy retires it depends on who gets nominated. I believe that there are probably 4 scotus justices that would vote to strip churches of tax exempt status over ssm. Politics has always influenced scotus and always will.

  25. Clark Goble says:

    I think the argument about tax exempt status isn’t based upon current law, but legislative changes due to what is acceptable. Like you I find this a bit dubious. I’m not sure I’d say it’s a slippery slope fallacy although some presentations are done in a fallacious manner. Rather it’s just acknowledging changing social norms.

    Federal funding of schools is trickier although you didn’t address that. I think that were schools to start to lose funding on this we’d see Title IX and related laws simply changed. But who knows what the future does. I think it’s the uncertainty that worries people more than the likelihood.

  26. bbell, the thing is, even if you’re right about the Supreme Court (and you’re not), they don’t have any way to do it. You may hate, hate, hate the fact that a particular church is exempt. You may hate it so much that you write a really nasty letter to the IRS demanding that it revoke the church’s tax exemption. And then …

    Crickets.

    You get angry that the IRS isn’t doing anything, so you sue them to force them to revoke the church’s tax-exempt status. And your suit is immediately dismissed, because you don’t have the constitutionally-mandated standing necessary to bring the suit. So the district court can’t hear your complaint. And, if the district court can’t hear it, neither can the appeals court, and neither can the Supreme Court.

    Which is to say, even if all nine Justices wanted churches that oppose same-sex marriage to lose their tax-exempt statuses (and, again, there is less than no evidence that any Justice even cares), the Supreme Court has no way to effect such a policy goal.

  27. Clark Goble says:

    To add, it’s not just whether the courts change their view of meaning. Rather it’s also how regulators do. Again recent changes in how Title IX is interpreted clearly have had far ranging effects.

  28. A Non-E Mous says:

    Sam, Oh, of course, I don’t expect you to take on the contingent funding issue. I’m just saying (for lastlemming’s benefit) that whatever number you come up with in terms of taxable income would be less concern than the federal funding issue. If students can’t get PELL grants or Stafford Loans and the University can’t receive federal research grants, that’s a much bigger problem.

  29. N. W. Clerk says:

    I am glad that (1) an Internet archive exists and (2) Sam appears to be relatively young, so that in 10 years we will at least have the pleasure of looking him up and saying “We informed you thusly”.

  30. CJ Jones says:

    Last time I checked, the executive branch controls the IRS – not the Supreme Court. What are the odds the Supreme Court would strike down a validly promulgated executive order (or legislative act by Congress) revoking tax exemptions for organizations that discriminate against gays? This would be a neutral law of general applicability and as such religious organizations would be affected along with all other organizations that so discriminate (e.g., the Boy Scouts), so the first amendment religious exemption provisions would not apply.

  31. I’m with Sam on this. The way I see it:
    a. There’s very little new here. I recall virtually all the same discussion and concerns in the ’70s when the issue du jour was race. (No internet, no archives, you’ll have to trust me on memory.)
    b. There are some new things: (i) a heightened sense of sexual orientation being an impermissible ground for discrimination (so colloquially, a “new way to discriminate”), and (ii) standing rules that make it difficult to impossible for individuals to challenge tax exempt status.
    c. A privilege to discriminate on principle plays through law and culture in many ways. There has been, is now, and will continue to be, lots of sturm und drang. Public accommodation rules. Property tax. Job security. Primary and secondary boycotts. Public dissing. Medical care. Insurance coverage. Etc. Etc. Etc. Hospitals, schools, and closely-held businesses that want to discriminate will have issues. Always have.
    d. The tax-exempt status of churches (U.S. federal income tax 501(c)(3) status for core exclusive religious purpose organizations) is at the far extreme, the least likely to be affected. I’d put it on the order of amending the Constitution. Yes, there is noise about amending, but all the noise I hear would propose amendments in the other direction. (And the degree of consensus among the States that would be required means, by my reckoning, that none of it will happen.) And therefore “will not lose” seems appropriate with the narrow definition Sam is using.

  32. Sam B. – if you know — have churches in other countries that passed/accepted SSM lost their tax exemptions based on their refusal to accept SSM? Or, is America unique in its treatment of churches and taxes? Not that it would necessarily dictate what will happen here, but some examples from other taxing jurisdictions might be helpful to calm things down.

  33. Michael Austin, that’s kind of a childish retort to some people who are asking honest questions and making real arguments, don’t you think?

    Sam, I don’t understand why you are so vested in vigorously squashing even the merest shred of argument that you might be wrong. Yes, precedent is currently on your side, but the tax code isn’t the constitution, is it? Changing the tax code is hardly the same thing as amending the constitution, political will is all that is needed and it’s pretty clear where the political and public will on the issue of SSM is right now.

    Michael with his sophomoric condescension and you with your absolute insistence on the solidity of your position don’t address the whole issue of public will and the power of politics to change what up to now has always been. As your critics point out, up until a few years ago opposite sex marriage was what always had been and it’s startling how quickly that has changed.

  34. IDIAT, none have, to the best of my knowledge. Their exemption regimes differ from ours, of course, but I’m unaware of any tax consequences in other countries that have legalized same-sex marriage.

  35. KLC, because the argument is based in an inchoate sense that something bad has to happen, and therefore the tax exemption must go. It’s an unfounded assertion, and it doesn’t rise to the level of argumentation. Plus, when someone on the Internet is wrong about my area of expertise, I necessarily need to step in.

  36. Not a tax issue, but to me the interesting legal issues involve BYU-approved housing. Owners af BYU-approved housing units are contractually required to adhere to and enforce the Honor Code. Presumably the Honor Code would prevent them from rending an apartment to a same-sex married couple, and would require the landlord to evict a student who was kicked out of BYU for engaging in violative same-sex conduct, whatever that may be. It seems to be a matter of time before the new Utah anti-discrimination laws are applied to this fact scenario.

  37. More to the point, KLC, the adoption of same-sex marriage hasn’t been sudden—it’s been in the public eye for more than 15 years. It’s not like it appeared out of nowhere.

    And it’s also not like it has any relation, let alone causal relation to tax exemptions. The argument, as popular as it is, is wholly attenuated.

  38. But your area of expertise is not foretelling the future, is it? You seem to have an inchoate sense that nothing bad will happen, therefore the tax exemption must stay.

    You can give us current law and historical precedent, and I’m glad you’ve taken the time to do that, but the future has a way of surprising us. The assertions that your critics are making about the future are, given recent events, hardly unfounded. They certainly are unproved, but everything about the future is unproved in the present.

  39. Clark Goble says:

    KLC, I think his point is that barring major change, the fears are unlikely. I think it a reasonable fear to note that society is changing quickly and that interpretation in law and what types of laws are passed depend upon social norms. However it also seems reasonable to note that there would have to be big changes for the fears to be realized. i.e. current changes aren’t indicative of the fears they are being used to indicate.

  40. Mark B. says:

    It’s more a political question than a legal question, which means that the historical and legal arguments are largely irrelevant.

  41. Actually, Mark B., historical and legal arguments are very relevant to political questions. In political economy models, historical and legal questions are factored in the political costs that need to be expended in order to get a given policy enacted.

  42. lastlemming says:

    It’s more a political question than a legal question

    And the political answer is that Republicans control both houses of Congress and would unanimously oppose removing the tax exemption for churches (if for no other reason than that Grover Norquist would declare it a tax increase). I doubt Democrats would be unanimous in the other direction and a change would require 60 votes in the Senate. Such an outcome is on nobody’s radar screen.

  43. Bro. Jones says:

    Sam said: “I did say it could be that schools would lose their exemptions. But, in the very next sentence I said that we could revoke the First Amendment, move from an income to excise taxes, or eliminate married women’s ability to independently hold property. Just because something could happen doesn’t mean that it’s worth worrying about.”

    This pretty much nails it. The simplest argument is this: when the LDS church was opposed to interracial marriage and the inclusion of black people in its priesthood and temple worship, we didn’t lose our tax-exempt status. If we didn’t lose it over such unambiguously repugnant and outdated practices, we won’t lose it over discriminating against gays. Likewise, just as blacks and interracial couples never got court orders to try and “force” their way into the temple, gay people won’t either.

    I mean, it *could* happen in the sense that any nation hosting an LDS temple could kick in the door, collect taxes from church holdings, and then throw a party in the Celestial room for fun. It’s not impossible, just highly improbable.

  44. Clark, I agree that Sam made a good case for these things being unlikely but unlikely doesn’t mean impossible and it felt like the discussion was heading in that direction with many of Sam’s subsequent replies and Michael’s attempt at using absurdist humor to paint any critics as reactionary hillbillies. That’s really the only reason I joined in.

  45. N. W. Clerk says:

    “Such an outcome is on nobody’s radar screen.”

    The vote in favor of DOMA was 342-67 in the House and 85-14 in the Senate. Whose radar screen should we trust?

  46. it's a series of tubes says:

    NW Clerk, the Lord will not permit BCC’s radar screen to lead you astray. It is not in the programme.

  47. tbennion says:

    As an MBA, I can’t speak to the law, not that the legalese isn’t interesting. I’m still hearing in the above, and I happen to believe, that ultimately the outcome will be political. Political will changes laws, and few things are more powerful than righteous indignation in the hands of a majority.

    I am no doubt biased by virtue of living here in deep-blue Seattle, perhaps if rather than the Olympic mountains, I was looking out my office window at the Wasatch mountains, my determination that the political winds will force change would be less certain, but all I can tell you that my neighbors already make NO distinction between any discrimination (as defined in their eyes) against gay marriage (or any other discrimination against the GBLT community) and racial discrimination. Zero. And, their definition of such is broad. As one gay co-worker defined discrimination as anything that makes someone feel “second class” or “less valued”. I can also confirm anecdotally the polls that indicate America’s youth are being trained in the same mindset. My children all have classmates with same-sex parents – no, not classmates, friends, great kids, with sleepovers, parties, etc. I couldn’t have imagined that during my childhood and adolescence in the ‘70s and ‘80s. My girls won’t be able to imagine it any other way.

    Setting everyone’s close reading of the statues aside, the methods for forcing change, whether tax exemption status or federal grants are all in play. They are in play because the political will is there and is organized. They are well-educated, well-connected, and very well-funded, and have been extra pissed off since Prop 8.

    I am willing to wager anyone that at best the church will be spending significant sacred funds on attorneys and lobbyists protecting itself/BYU successfully within the very near term, and that at worst, it will do so unsuccessfully (I make the foregoing distinction not on whether the Church’s policy is “right” or “wrong”, merely on whether they win or lose). All the while, I believe missionary work will suffer from significant negative press painting us as bigots, absolutely digging up our embarrassing history with blacks and the Priesthood, leaving non-members with an impression that will turn off young prospects desire to ask of God the truth of the Gospel.

    Not that we wager in the church…no gambling…

  48. Clark Goble says:

    “Bro Jones” it’s important to realize that within 10 years of the civil rights movement the Church had changed it’s position on blacks and the priesthood. Do you foresee a similar change within 10 years on gay marriage? Because I don’t. Also gay marriage has become socially normative much faster than interracial marriage did.

    When the Church received the revelation on priesthood interracial marriage was still approved by only around 30%. (See this Gallup poll history) It wasn’t until after 9/11 that it was even above 70%!

    Contrast this to the similar question of SSM where in only 20 years we had a change that took more than 40 years for race. To draw an analogy in terms of poll numbers the Church reversed the priesthood issue about equivalent to having reverse the marriage issue 10 years ago. (Note I’m not saying the church should reverse its position. I’m merely saying that the revelation on blacks and the priesthood took place much earlier in the evolution of acceptance of SSM by society. So analogies to racial issues simply don’t apply.

  49. Clark Goble says:

    LastLemming, that assumes that views within the GOP will remain the same. Yet among young Republicans acceptance of SSM is overwhelming. There is a huge generation gap within the GOP on the issue. It’s simply erroneous to assume that the GOP of 10 years from now will hold the same views as today. Again look at racial issues. The GOP is leading the removal of confederate flags from government property. Yet just two decades ago a former KKK leader was one of the major leaders of the Democratic party in the Senate. Things change fast in politics.

    Likewise it is erroneous to assume that the filibuster will exist in its current form 10 years from now. Already there’s talk by a lot of GOP of restricting the filibuster quite a bit. Also there are ways around the filibuster through reconciliation (which of course would be appropriate for tax related issues).

    So the divides you outline seem far more uncertain at a close examination than they do at first glance.

  50. During the prop. 8 controversy there were folks trying to comfort us angry conservatives, reassuring us that SSM was not likely to become legalized on the federal level for generations to come due to DOMA and other “safeguards.”

    It’s not merely a slippery slope. It’s a freaking landslide.

  51. Clark, et al.: I get that you believe this time is different. Why? No church has ever, ever lost its exemption for discriminating on the basis of race. Of color. Of gender. Of religion. Of nationality. Of family status. Ever. So what makes sexuality different?

  52. Clark Goble says:

    I don’t think I’m saying that. I think I’m adopting a middle ground between those who see an avalanche on the slippery slope and those who think it’s a flat plain. I think there are differences precisely because the social situation is different. Social views of religion are changing and changing fairly quickly. Also SSM view changed incredibly quickly. Basically a complete shift in 10 years. Given that I just think we can’t make predictions of what the society will be like in 10 years.

    That’s not to say I think charities will lose their tax exemptions because I don’t think they will. If only because I don’t think you could exclude religions without doing the same to more political non-profits such as Planned Parenthood, Sierra Club and more. I think there’s a kind of detente where the current situation benefits everyone.

    The only exception might be colleges because of laws like Title IX. However honestly I suspect that as soon as a college lost funding because of an honor code that there would be a lot of pressure to change Title IX. At least over the next decade. Beyond that who knows?

  53. Clark Goble says:

    To add, why do I think things could change in 10 years? Simply because of the huge demographic shifts pollsters are finding among those 18-25. Things are changing extremely quickly and it’s not clear whether we’re seeing a move towards secularization ala Europe or simply a move to a new status quo.

  54. Bert Maclin says:

    I think a more interesting question is why smart people like the author of this post would continue to support a church that is actively opposed to gay marriage. Tax exemption aside, participating in an organization that seeks to undermine the legitimacy of loving family relationships isn’t cool.

  55. You may have professional expertise and a large body of legal precedent to call on, but I’ve got a gut feeling.

  56. Well said, tbennion! That’s my West Coast experience as well. And, approaching my 70s and remembering a very different social climate, I welcome this refreshing change with enthusiasm. It takes so much less energy to love and accept people and it leaves my straight little heart with so much more feeling of wellbeing.

    If, one day, one of my great grandchildren turns out to be gay, it gives me great reassurance to know that all my family will naturally and spontaneously envelop them in the same love and acceptance we all thrive in. Isn’t that was families are forever is supposed to mean?

  57. Ah, Clark, sorry, I misunderstood where you stood.

    And darn it, Casey, I just can’t overcome your gut feeling!

  58. Mark D. says:

    It might be worth considering a perhaps rather more likely possibility. Congress, as part of a general tax reform, could eliminate the income tax deduction for donations made to qualifying charitable organizations altogether. Such organizations as a class have no legal right to be massively subsidized through the tax code, and although it would be a painful transition, the proposition that the world would be on the whole worse off if the charitable donation tax deduction were eliminated on a revenue neutral basis is far from a foregone conclusion.

    To start with, where is the evidence that public charity is more economically efficient, i.e. accomplishes more real good per dollar expended, than private charity – starting in the home and family – which is by and large, not tax deductible at all?

    (By public charity here I mean tax preferred donations to 501(c)(3) qualified organizations, most of which are “public charities”. Some private foundations also qualify for 501(c)(3) status.)

  59. A new problem is insurance companies will not cover a church if sued for not performing gay marriages. Already in the news.

    Churches will quit performing marriages. The state will eventually do all marriages.

  60. Mark D. says:

    The First Amendment would have to be modified or repealed for a church to be at serious risk of being compelled to perform a same sex marriage. The case that has been in the news lately concerns a business, a wedding chapel, which has lesser protection.

  61. Predictions are hard to make, especially about the future, as the saying goes. Roe was termed by a dissenting justice, Justice Byron White, as “an exercise of raw judicial power.” Chief Justice Roberts found the Obergefell decision “indefensible as a matter of constitutional law.” Those my age have seen previously unexpected changes in law and culture, though the Church leaders when I was much younger did say the world’s standards would be lowered, and I should have expected this, contrary precedent notwithstanding.

    Jefferson observed that “The natural progress of things is for liberty to yield and government to gain ground.” Consider the state of the 4th and 10th amendments. The arc of history may as easily bend towards a previously unthinkable injustice and tyranny as towards justice and liberty. Ask my German relatives. The Book of Mormon is full of political, military, and spiritual ups and downs and ends with a massive crash, though it took some time to play out. We have no right to assume that because things have gone well in the past, that they will always do so in the future, and we don’t even have evidence that things have always gone well in the past.

    Put not your trust in princes (Ps. 146:3), nor in courts, political parties, pundits, or even in bloggers.

  62. Precedents change. A good lawyer not only reads past precedents, but tries to create new ones. For example, a constitutional right to same-sex marriage, unthinkable and unprecedented even 20 years ago, has now been decreed by the Supreme Court. While Brunson’s optimism is commendable, I don’t find it reassuring. Those who are worried about the tax exempt status of churches have well-founded concerns. These exemptions are creations of statute, and many on the left are already talking about getting rid of them. Why do we believe they won’t take their cause to the courts if they don’t succeed in the legislature? Only time will tell for sure, but it seems a bit naive to think these exemptions won’t be an issue, as solicitor general pointed out.

  63. JH, who are the “many on the left” looking to eliminate tax exemption for churches? I follow legislative and lobbying with rep sect to the tax law closely, and don’t see anybody credible doing it; moreover, the process of changing the tax law (to take away a benefit enjoyed by a broad-ish cross-section of Americans, no less) is a much different procedure than getting new rights and benefits, both rhetorically and practically. I’m not sure what drives your faith that everything is different now, but everything isn’t different. And Obergefell has no connection to the tax law, other than obviously that same-sex couples in every state can now qualify to file their returns as married.

  64. This is really a simple matter, and viewing it though a narrow legal or political lens is myopic. The plain fact is that the Zeitgeist is in conflict with the Heiliger Geist. Obergefell is a recent sign of that, but it has been so since the fall of Adam (Mosiah 3:19). Therefore we have no warrant to believe that bad things cannot happen, even if those things seem incredible now or seemed incredible just a few years ago. There is no reason to panic, but we do need to take heed to prophetic counsel to guide us in these latter days.

    The left is not above using taxes as a weapon. See https://www.lifesitenews.com/news/san-francisco-set-to-tax-catholic-church-millions-in-suspected-prop-8-retal

    That does not mean that the churches will necessarily lose their tax status soon or at all, but few Frenchmen predicted the actual course of the French Revolution, few Russians anticipated the course of the Russian Revolution, few Germans in 1900 predicted that Germany would lose two disastrous world wars, and few Englishmen thought England would lose its world empire so quickly. History may, nay will, continue to surprise us, and it is possible for evils and designs to exist in the hearts of conspiring men in the last days. I assume some of us at least still believe that.

  65. You can talk all you want about the wars and conspiracies, Leo, but where you see evils and designs, I see tender-hearted youth trying to figure out how they fit into their religion’s theology and culture, and struggling mightily and often failing to find a place for themselves.

    I am rather curious whether you, or anyone who couches this discussion in apocalyptic terms, actually knows a gay brother or lesbian sister in the church, and has bothered to sit down and talk and really try to hear what he or she is saying.

    Why is it necessary to turn even a sensible discussion based on Sam’s generously-shared expert opinion on the realities of our tax system into a cosmic struggle with evil? Do you understand the human cost of comments like yours?

  66. I said what I said. I did not say what I did not say.

    The world does not revolve about SSM. It is not all about your opinions or the opinions in the original post. The world’s problems did not begin this summer or even with the sexual revolution. Read D&C 1 and the history of the world since then if you think I am alarmist.

    The near-apocalyptic persecution of the churches (of many denominations) is worldwide and ongoing and has been since the original apostles and was predicted in the New Testament. All sorts of causes have been used to encourage attacks on any number of churches. Are we allowed to notice that? Do you understand the human costs of ignoring the persecution of Christianity or the future possibilities of that?

    Many Christians understand the costs and dangers of being a Christian. Some do not. Kierkegaard wrote, “Of every word Christ spoke pointing toward the cost and suffering of being a Christian, we say this: this does not apply to us; this was spoken expressly to the disciples. We make good, however, of every word of consolation, of every promise; whether Christ spoke to the apostles or not makes no difference.”

    The D&C couches its evils and designs theme in terms of the Word of Wisdom. I don’t see any coffee drinkers accusing me of hurting their feelings and compounding their struggles with the Word of Wisdom. Have you ever heard the Word of Wisdom attacked on the basis of the human costs of its publication? Do you believe in the contents of the 89th section of the D&C?

    Of course, I know gays in and out of the church, and I am sympathetic to their plight. So is the Church, and so is my bishop. But that is not the issue here. The issue is simply and specifically whether the political and tax climate could turn against the Church in the future. The answer to that question is, to me, obvious. The issue is not about sexuality in general or in particular. It is about the fall of Adam and mankind’s continued ability and propensity to fall. You can deny the doctrine of the fall if you like. You can deny that the natural man is an enemy to God. You can deny that bad things can happen in the future. Just come out and say so, it that is your position.

    I support the statements of the General Authorities in the Proclamation on the Family, in other official publications and in recent and past General Conferences. I am sure than some took offense at those, including Elder Packer’s and Elder Perry’s addresses. The publication of “A Voice of Warning” predates these recent addressed. If you disagree with the General Authorities, past and present, please say so.

    As for a sensible discussion, any claim that it is easier to invent a new constitutional right that cannot be trumped under any circumstances than to change a tax law, when tax laws change every year and almost always in the direction of higher taxes, is naive at best. Even the Supreme Court arguments brought up this issue without resolving it.

    The Chief Justice lamented not the legislative policy behind Obergefell (I registered no strong protest when marriage laws were changed in a few states by legislative acts) so much as the hash it made of constitutional law. And I agree with the Chief Justice that that is the point we should be reflecting on and its implications. So strongly did he hold his legal opinion, which was in some ways sympathetic to gays, that he read every word of it aloud from the bench, a rare occurrence for such a lengthy opinion. Why do you think the Chief Justice was so concerned?

  67. So your answer is no, you don’t understand. Thanks for clearing that up.

  68. Given that A#4 didn’t answer any of my questions, the problem is that I understand all too well what could be coming down the line, not in Utah or maybe not at the federal level, but in certain cities, perhaps San Francisco, and states, perhaps Oregon or California, not immediately, but who besides A#4 would be so bold as to say never? I could cite a Supreme Court Justice or two to the effect that my concerns are hardly farfetched. But what do they know compared to those so bold as to say this can never happen?

    A suggestion to readers: Google “the law of merited impossibility.”

    Taxes aren’t going to be the only problem going forward. Consider this article on insurance:

    http://legalinsurrection.com/2015/07/the-world-of-post-scotus-gay-marriage-and-church-insurance/

    Excerpts:

    “On July 1, David Karns, vice president of underwriting at Southern Mutual Church Insurance Company (which “serve[s] more than 8,400 churches”), wrote … The main concern is whether or not liability coverage applies in the event a church gets sued for declining to perform a same-sex marriage”

    The short answer: No.

    The reason that coverage in such circumstances would (likely) be declined is that it was an intentional act of violating the law. So if (when?) a church (or synagogue, or mosque) is sued for refusing to perform a SSM, the resulting lawsuit would not be covered. That also means the carrier has no “duty to defend” (basically: provide legal counsel). Of course, any fines imposed by the state would also be excluded.

    Imagine Acme Church Insurance Company with 50,000 policyholders, 10,000 of which get sued for refusing SSM, and all 10,000 of these claims are denied. That’s a lot of ticked off customers, no? So what’s the likelihood that the next application version’s going to include a question about SSM, and if the answer’s not “sure, all the time,” then no soup policy for you.

    Is that likely to happen in the next year or two? Probably not, but don’t be surprised when it does happen a few years down the road.

    …many (most?) churches have Boards of Directors (or Elders, or Deacons, etc), and thus likely have D&O (Directors and Officers) coverage:
    “Errors and omissions coverage for an organization, its leaders, and governing bodies while acting within the scope of their duties.”
    The reason for this coverage is that board members could be sued individually, putting their personal assets at risk for something their church or its leaders may have done (or not done).
    … such policies might also decline coverage for SSM-related claims. Talk about a chilling effect on lay folks volunteering for leadership positions in their congregations.
    Brave new world, indeed.”

  69. Bro. Jones says:

    Leo: “Is that likely to happen in the next year or two? Probably not, but don’t be surprised when it does happen a few years down the road.” A direct lawsuit against a church for declining to perform a same-sex marriage ceremony has no merit and will go nowhere. It’s baseless to the extent that I would suggest a church file a summary judgment motion on their own if they did not feel it appropriate to retain paid counsel.

    If the US (or any nation) gets to the point where lawsuits against non-established churches to compel behavior are allowed to proceed, we’ve got much bigger problems than the evil gay ninjas lying in wait to file those suits.

  70. Mark D. says:

    The LDS Church is self-insured, so potentially losing insurance coverage is not a problem.

  71. Mark D. says:

    Or to be more accurate, the Church is self-insured for claims up to a rather large number, and has umbrella coverage for claims over that. That came out in a recent court case.

  72. Re the pro-pedophilia organization: If merely advocating changes in the law (rather than engaging in currently illegal practices) can justify denying (c)(3) status in the case of pedophilia, why can’t it do the same in the case of any organization that wants to legalize anything that is currently a crime? The obvious cases would be those advocating the legalization of drugs and/or prostitution, but opponents of some professional licensing schemes or of overcriminalization in general might also qualify.

  73. DeepThink says:

    Personally, I hope there is a challenge to churches and/or universities in these matters. I hope funds get pulled or challenged. Or that Title VII gets changed, or that Title IX gets changed. Because that will create a cause of action, and standing, to take this up to the High Court to resolve this issue materially. We have Obergefell to speak to the rights of LGBT. We need a case that speaks to the rights of churches as it relates to Obergefell.

  74. Leo, yes, we are warned of the “evils and designs which do and will exist in the hearts of conspiring men in the last days” (D&C 89:4). For instance, the greed and self-interest that fuels the insurance industry, where insurance companies’ priority is not the good of their insureds, who are paying premiums in good faith reliance that they will be covered, but rather the maximization of profit to their shareholders — a wall street paradigm that is amoral at best, and more likely immoral because it is based on selfishness, i.e. self-interest or, in the scriptural phrase, the “natural man.” Make no mistake, the insurance industry are not “good guys” by any stretch of the imagination (see, e.g. https://magazin.spiegel.de/digital/#SP/2015/30/136751512). If they are going to stop insuring churches because The Gayz, then it isn’t because in the face of decades of abuse and discrimination by religious majorities in America, American citizens who happen to have been born gay were demanding the same civil rights (such as the fundamental right of marriage) that straight people enjoy as a matter of right.

    No, the First Amendment is not “a dead letter” now that the equality before the law of gay people has been specifically identified by the Supreme Court (your insurance conspiracy was recently addressed in Meridian Magazine by Cassandra Hedelius with this hyperbolic assurance — that the First Amendment is “a dead letter” because religious majorities in state legislatures can no longer tyrannize miniscule minorities such as gay and lesbian citizens by exercising the power of the state against their civil rights.)

    Yes, one can completely believe in the phrase from the Proclamation that “we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets” without making the unwarranted leap in believing that allowing 2% of the population to enjoy equal civil rights with the rest will lead to the disintegration of the family. Instead, the Book of Mormon, the book of scripture that we believe was written specifically for our day, does not mention homosexuality or gay marriage a single time but speaks extensively about the disintegration and calamities that caused multiple civilizations to collapse. That guide identifies some of the sources of such disintegration/collapse in massive income inequality, lack of equal chances for learning, pride in material possessions and success, grinding the face of the poor who are judged not to be materially wealthy or successful, and priestcrafts.

    Yes, one can sustain Church leaders and recognize when they are speaking in their office as prophets, seers, and revelators without subscribing to this particular political effort that they have undertaken for the last decade or so. That is, one can believe that the Church can and should teach its members not to engage in homosexual sexual intercourse, if Church leaders believe that they have received revelation specifically maintaining the Old Testament injunctions against it — despite the attendant prohibitions surrounding it, such as refraining from eating shellfish, having been revoked through Christ — without thinking that the Church, in a pluralistic society, should be uniting with others to try to exercise the power of the state against gay people.

  75. it's a series of tubes says:

    if Church leaders believe that they have received revelation specifically maintaining the Old Testament injunctions against it

    Trond, your overall comment was great, but are you suggesting here that homosexual sexual intercourse is permissible / not sinful unless a modern prophet has received revelation to that effect? It seems that your OT analogy conveniently ignores NT scripture that speaks either directly or indirectly to the sinfulness of the behavior, for example at least 1 Timothy 1:10, Romans 1:27, and 1 Corinthians 6:9-10.

  76. No I am not discounting the apparent ratification of that particular Mosaic prohibition in the New Testament.

  77. lastlemming says:

    Sam,
    Consider this the reminder you requested above:

    “could you enlighten us as to the financial consequences of BYU (but not the Church) losing its tax exempt status?”

  78. lastlemming says: