If the Supreme Court rules that there is a constitutional right to gay marriage, religious charities could be in for a big shock.
Religious people who believe in marriage as it has been for "millennia" (as Justice Kennedy put it) have lost business, lost jobs, and been sued by their own government. Those of us who support laws that protect both gay couples and religious people find these developments troubling. But if the Supreme Court rules that there is a constitutional right to gay marriage without reaffirming the rights of religious people, we will see many more situations like this.
Don't take my word for it. During last month's oral arguments in the same-sex marriage cases U.S. Solicitor General Donald Verrilli acknowledged that the tax-exempt status of religious institutions -- the colleges, hospitals, and homeless shelters that religious people have founded and run -- will become an "issue" if the Supreme Court finds a constitutional right to same-sex 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 don't deny that. I don't deny that, Justice Alito. It is going to be an issue.
The Bob Jones case involved a South Carolina Christian university that banned interracial dating. The IRS decided that it could revoke the school's tax exempt status because the school's ban on interracial dating was against "public policy," embodied in cases like Loving v. Virginia, which found a constitutional right to interracial marriage. The school challenged the IRS, and the Supreme Court sided with the government.
As Verrilli admitted, a Supreme Court decision finding a constitutional right to same-sex marriage could, in the future, be used by the IRS to justify stripping tax-exempt status from every religious college and charity that disagrees. True, race nondiscrimination receives special protection in America, and nothing would compel the government to extend the Bob Jones precedent. But if it did, that would be a terrible outcome for dissenting religious institutions and the people they serve. Money that would go to help the poor and others in need would go to the IRS instead.
It doesn't have to be this way. Take New York. When New York legalized same-sex marriage, the legislature balanced the needs of gay couples and religious people, and came up with exemptions to protect the ability of religious citizens to keep practicing their faith. These protections are by no means perfect, but they do help a significant number of people and avoid unnecessary conflict.
But if the Supreme Court holds that there is a constitutional right to same-sex marriage -- and especially if the court holds that the reason for laws opposing same-sex marriage is "animus" or hostility towards gays and lesbians, which some of the lawyers have asked it to do -- then New York's religious exemptions could be challenged as unconstitutional, because they would simply be protecting illegal bigotry.
None of this is necessary. If the Supreme Court finds a constitutional right to same-sex marriage, it can, and should, leave room for states to accommodate those who adhere to a traditional view of marriage. And if the Supreme Court allows the states to debate and decide the marriage issue themselves, then states will continue to have the freedom to accommodate both gay couples and religious dissenters. Every state that has legalized same-sex marriage to date has done this, and while some of their solutions are imperfect, all of them would be a huge improvement over a winner-take-all approach that secures rights for some at the expense of others.
The reality is that same-sex marriage and religious dissent can coexist in this country, but it will require hard work and a lot of good will from all sides.
(Robin Fretwell Wilson is a professor of law at the University of Illinois and recently assisted the Utah Legislature to enact the Utah Compromise balancing LGBT rights and religious liberty. In 2008 she co-edited Same-Sex Marriage and Religious Liberty: Emerging Conflicts. This commentary first appeared in USA Today.)