Obergefell’s Threat to Religious Liberty

 

As a libertarian, I support same-sex marriage. As a libertarian, I also fear the totalitarian overtones sounding from the next round of gay rights initiatives. The nature of the Supreme Court’s recent ruling on same-sex marriage in Obergeffel v. Hodges has only compounded the danger. As I note in my newest column for Defining Ideas from the Hoover Institution:

…[I]n the wake of Obergefell, we have to ask what the next step in the struggle over same-sex marriage will be. By insisting that same-sex marriage is a fundamental right, Kennedy has consciously introduced an equivalence between race and sexual orientation. How far is he prepared to go? In the 1983 case of Bob Jones University v. United States, the Supreme Court upheld an IRS decision to deny tax-exempt status to schools engaging in racial discrimination. The Court acknowledged that it could not outlaw the Church’s practices, which were protected as a free exercise of religion. But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

Can the IRS now deny tax exemption to the Roman Catholic Church on the ground that it rejects, on religious grounds, same-sex marriage? If so, that judicial notion of “fundamental interests” works effortlessly both to expand and contract state power. It can insulate the exercise of some liberties from state control, but allow other liberties to be burdened by differential treatment of other liberties, including those expressly embedded in the Constitution.

The point here is not idle speculation. Here are three data points. In Martinez v. Christian Legal Foundation (2010), a five-to-four majority with Justice Kennedy concurring, held that it was perfectly proper for Hastings Law School, a public institution, to deny the tiny Christian Legal Foundation the full benefit of school facilities largely because of its opposition to same-sex marriage. The government can offer its subsidies to some groups but not to others, and in so doing, force small isolated groups to subsidize powerful gay rights organizations. Religious intolerance best describes that outcome.

Since then, the situation has only gotten worse. Last year there was public outrage at the Supreme Court’s decision in Burwell v. Hobby Lobby, which upheld claims under the Religious Freedom Restoration Act that a closely held company did not have to supply contraceptives to its female employees in a fashion inconsistent with its owners’ religious beliefs. And more recently, claims for religious autonomy have been crushed in state court decisions that have fined individuals who have refused on religious grounds to make wedding cakes for same sex couples. No one seems to be concerned with the autonomy and dignity of those under the state’s thumb. They will have to abandon their chosen profession to honor their religious beliefs. I see no evidence that gay and lesbian rights advocates are prepared to back off of these statist claims.

The hard question is how Justice Kennedy—now the swing vote on all matters “fundamental”—thinks about this issue. Here the evidence is decidedly mixed. To be sure, his opinion inObergefelltalks about the importance of letting religions “teach” the central principles of their faith. But as Justice Thomas’s dissent points out, a religion that is allowed to teach its beliefs may be forced to give up its tax-exempt status if it puts those beliefs into practice, and its adherents can be hounded by the state if they decide to run their personal lives in accordance with their religion. We thus face a serious risk in the aftermath of Obergefell: liberty in gay rights will turn out to be a one-way street. Some liberties will be guaranteed for some people while other liberties will be squashed for others.

You can read the argument in full here.

There are 19 comments.

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  1. Julia PA Member
    Julia PA
    @JulesPA

    Richard Epstein: But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

    Just curious of the estimate of increased $tax revenue$ from those institutions who might lose their differential tax treatment as a result of adhering to their beliefs?

    • #1
  2. MichaelC19fan Member
    MichaelC19fan
    @MichaelC19fan

    With the battle over SSM over, the articles on taking away tax-exempt status for churches and non-profits that do not tow the line have started to appear.

    http://fusion.net/story/158096/does-your-church-ban-gay-marriage-then-it-should-start-paying-taxes/

    • #2
  3. Tuck Member
    Tuck
    @Tuck

    “I know that I am leaving the winning side for the losing side, but it is better to die on the losing side than to live under Communism.” — Whittaker Chambers

    • #3
  4. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Jules PA:

    Richard Epstein: But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

    Just curious of the estimate of increased $tax revenue$ from those institutions who might lose their differential tax treatment as a result of adhering to their beliefs?

    The money will be used to fund apprenticeship programs to train bakers.

    • #4
  5. Julia PA Member
    Julia PA
    @JulesPA

    MichaelC19fan:With the battle over SSM over, the articles on taking away tax-exempt status for churches and non-profits that do not tow the line have started to appear.

    http://fusion.net/story/158096/does-your-church-ban-gay-marriage-then-it-should-start-paying-taxes/

    The article is over the top in its claims, but there are some interesting comments attached to it that challenge that author’s claim.

    • #5
  6. Spin Member
    Spin
    @Spin

    Jules PA:

    Richard Epstein: But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

    Just curious of the estimate of increased $tax revenue$ from those institutions who might lose their differential tax treatment as a result of adhering to their beliefs?

    I can tell you, as the treasurer for my church, if we are any indication, it’ll be next to nothing.  ;-)

    • #6
  7. user_82762 Thatcher
    user_82762
    @JamesGawron

    Richard,

    It is clear from your treatment that it is not if but when. Churches, Synagogues, and every other religious institution in this country will come under the insanity of this attack. I am going to say something that is not very politic but I think justified under the circumstances. Something that is specifically directed at the Libertarians.

    “When the wolf is at the door you don’t open it to let the cool breeze in.”

    The Libertarian community needs to realize that there are certain limits that can’t be crossed and those limits extend into the social realm. If the religious community is destroyed just how long do the Libertarians expect to hold out before the tyranny of pure statism descends upon them.

    First they came for the Catholics, but I did not speak out because I was not a Catholic, then they came for the Protestants, but I did not speak out because I was not a Protestant, then they came for the Jews, but I did not speak out because I was not a Jew, then they came for me and there was no one left to speak out for me.

    We’d better start drawing the wagons into a circle right now.

    Regards,

    Jim

    • #7
  8. Vance Richards Member
    Vance Richards
    @VanceRichards

    Spin:

    Jules PA:

    Richard Epstein: But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

    Just curious of the estimate of increased $tax revenue$ from those institutions who might lose their differential tax treatment as a result of adhering to their beliefs?

    I can tell you, as the treasurer for my church, if we are any indication, it’ll be next to nothing. ;-)

    Yes, churches themselves would not be stuck with huge tax bills, but that is not the point. By removing tax exempt status, donors will not have a tax benefit for giving. This will reduce the amount of money available to give and make it much harder for churches to find funding. That is the intended goal.

    • #8
  9. Tuck Member
    Tuck
    @Tuck

    James Gawron: …The Libertarian community needs to realize that there are certain limits that can’t be crossed and those limits extend into the social realm. If the religious community is destroyed just how long do the Libertarians expect to hold out before the tyranny of pure statism descends upon them….

    The “Libertarian community” are the ones who wrote those limits into the Constitution in the first place.

    The so-called Social Conservatives have been busily eroding that Constitution for decades, now they’re reaping what they sowed.

    How does it feel?

    • #9
  10. user_82762 Thatcher
    user_82762
    @JamesGawron

    Tuck:

    James Gawron: …The Libertarian community needs to realize that there are certain limits that can’t be crossed and those limits extend into the social realm. If the religious community is destroyed just how long do the Libertarians expect to hold out before the tyranny of pure statism descends upon them….

    The “Libertarian community” are the ones who wrote those limits into the Constitution in the first place.

    The so-called Social Conservatives have been busily eroding that Constitution for decades, now they’re reaping what they sowed.

    How does it feel?

    How do you explain the social conservatives eroding anything? I absolutely don’t follow.

    Also, although there are intensely libertarian ideas written into the Constitution virtually all of the founding fathers would be classified as social conservatives.

    Regards,

    Jim

    • #10
  11. Tuck Member
    Tuck
    @Tuck

    James Gawron:

    Tuck:

    James Gawron: …The Libertarian community needs to realize that there are certain limits that can’t be crossed and those limits extend into the social realm. If the religious community is destroyed just how long do the Libertarians expect to hold out before the tyranny of pure statism descends upon them….

    The “Libertarian community” are the ones who wrote those limits into the Constitution in the first place.

    The so-called Social Conservatives have been busily eroding that Constitution for decades, now they’re reaping what they sowed.

    How does it feel?

    How do you explain the social conservatives eroding anything? I absolutely don’t follow.

    George Will explains it quite nicely:

    “Today, Congress exercises police powers never granted by the Constitution. Conservatives who favor federal “wars” on drugs, gambling and other behaviors should understand the damage they have done to the constitutional underpinnings of limited government.”

    And they’ve contributed to a Left/Right consensus that the Constitution shouldn’t impede each sides’ favorite project to improve us.

    Also, although there are intensely libertarian ideas written into the Constitution virtually all of the founding fathers would be classified as social conservatives.

    Regards,

    Jim

    Everyone was more socially conservative back then.  Everyone but Benjamin Franklin…

    You’ve heard of the Puritans.  They morphed into the Progressives, who became the Social Conservatives.

    • #11
  12. Ricochet Member
    Ricochet
    @bridget

    But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

    Well, yes, but the subtext is that it’s not the type of religious belief that makes any sort of sense to the government. The government is willing to abide a church that believes that an unborn child is a human being, even though the government has asserted that abortion is a constitutional right, since such a belief is supported by science and common sense; it is also willing to abide a church that believes in transubstantiation or consubstantiation, because there is no one who is hurt by those beliefs; but sees the belief against interracial marriage as both irrational and harmful to others.

    Unfortunately for those whose views align with every single society in every single culture, throughout all of recorded history until about 2001 or so, the government sees their opposition to same-sex marriage as irrational, and also as harmful to a certain class of people.

    • #12
  13. user_82762 Thatcher
    user_82762
    @JamesGawron

    Tuck:

    James Gawron:

    Tuck:

    James Gawron: …The Libertarian community needs to realize that there are certain limits that can’t be crossed and those limits extend into the social realm. If the religious community is destroyed just how long do the Libertarians expect to hold out before the tyranny of pure statism descends upon them….

    The “Libertarian community” are the ones who wrote those limits into the Constitution in the first place.

    The so-called Social Conservatives have been busily eroding that Constitution for decades, now they’re reaping what they sowed.

    How does it feel?

    How do you explain the social conservatives eroding anything? I absolutely don’t follow.

    George Will explains it quite nicely:

    “Today, Congress exercises police powers never granted by the Constitution. Conservatives who favor federal “wars” on drugs, gambling and other behaviors should understand the damage they have done to the constitutional underpinnings of limited government.”

    And they’ve contributed to a Left/Right consensus that the Constitution shouldn’t impede each sides’ favorite project to improve us.

    Also, although there are intensely libertarian ideas written into the Constitution virtually all of the founding fathers would be classified as social conservatives.

    Regards,

    Jim

    Everyone was more socially conservative back then. Everyone but Benjamin Franklin…

    You’ve heard of the Puritans. They morphed into the Progressives, who became the Social Conservatives.

    The part about the Puritans and the Progressives makes no sense at all. As they were all Social Conservatives back then might this suggest some necessary link. As for a litany of sins against pure libertarian principle, I don’t think the pure Libertarian point of view is always right. Right now Obama is a great Libertarian with his border policy. Why make war on these new undocumented folks just because they’ve broken some outdated idea like citizenship.

    Regards,

    Jim

    • #13
  14. Tuck Member
    Tuck
    @Tuck

    James Gawron:

    Right now Obama is a great Libertarian with his border policy. Why make war on these new undocumented folks just because they’ve broken some outdated idea like citizenship.

    I think you’re confusing Libertarian with Libertine.  Or something.  Obama has more in common with Juan Perón as regards immigration than he does with the Founders.

    • #14
  15. Tuck Member
    Tuck
    @Tuck

    James Gawron: …The part about the Puritans and the Progressives makes no sense at all….

    There’s a pretty direct link, if you’re not aware:

    “THE picture that most of us have of Woodrow Wilson as the austere, idealistic Puritan is not wholly wrong.  As one of his dear women friends, Edith Gittings Reid of Baltimore, said of him, ”He believed ideals could be put to practical use and be lived, and on that rock he broke, as all humanitarian idealists who have taken Christ as exemplar must break.”

    • #15
  16. user_82762 Thatcher
    user_82762
    @JamesGawron

    Tuck:

    James Gawron: …The part about the Puritans and the Progressives makes no sense at all….

    There’s a pretty direct link, if you’re not aware:

    “THE picture that most of us have of Woodrow Wilson as the austere, idealistic Puritan is not wholly wrong. As one of his dear women friends, Edith Gittings Reid of Baltimore, said of him, ”He believed ideals could be put to practical use and be lived, and on that rock he broke, as all humanitarian idealists who have taken Christ as exemplar must break.”

    Tuck,

    I appreciate your effort here but I don’t think Silk of the Times is getting it. Although Wilson’s photo may have suggested the look of a Puritan to Silk I don’t think it goes any farther. Wilson is exactly what he appears to be a progressive who is more than ready to embrace the latest social theories and run with them. The latest social theory of his era was Eugenics. Wilson believed in it and ran policy by it. He has little connection to Puritan Protestant Levelers who fought against an Imperial King to establish a Parliament. He is much more connected to a Margaret Sanger who like him believed intensely in Eugenics and started Planned Parenthood to enforce her obsession.

    Regards,

    Jim

    • #16
  17. Nick Stuart Member
    Nick Stuart
    @NickStuart

    We have embarked on an experiment to test the hypothesis:  Traditional Marriage is a bearing wall of civilization.

    Predictions have been made as to the effects on our civilization if that bearing wall is removed or substantially remodeled:

    • Opprobrium and legal penalties heaped on anyone who doesn’t go along with the redefinition
    • Loss of tax exempt status for non-conforming institutions
    • Untoward effects on children of same-sex couples
    • Moves to normalize of polyamory
    • Moves to decriminalize incest
    • etc, etc.

    These predictions are beginning to materialize.

    Anyone who spoke or wrote in favor of removing the wall owns a piece of the responsibility for the effects of removing it.

    That responsibility cannot be expunged by signing manifestos and writing think pieces to the effect “I didn’t mean for that to happen, don’t blame me, I didn’t do it.”

    • #17
  18. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Nick Stuart: That responsibility cannot be expunged by signing manifestos and writing think pieces to the effect “I didn’t mean for that to happen, don’t blame me, I didn’t do it.

    And they’re coming in about as quickly as the calls for the end of tax exemptions for churches.

    I remember writing on Ricochet at least a few times, “Don’t you see the totalitarian impulses of the Left at work here?”

    Lord, the sudden epiphanies of the Johnny-come-lately set are irksome. It’s lukewarm spew.

    • #18
  19. Spin Member
    Spin
    @Spin

    Vance Richards:

    Spin:

    Jules PA:

    Richard Epstein: But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

    Just curious of the estimate of increased $tax revenue$ from those institutions who might lose their differential tax treatment as a result of adhering to their beliefs?

    I can tell you, as the treasurer for my church, if we are any indication, it’ll be next to nothing. ;-)

    Yes, churches themselves would not be stuck with huge tax bills, but that is not the point. By removing tax exempt status, donors will not have a tax benefit for giving. This will reduce the amount of money available to give and make it much harder for churches to find funding. That is the intended goal.

    I know that is the intended goal, but I also know Christians.  They will get around it.  Work will be donated.  Material will be donated.  Things will happen “off the books”.  It won’t be ideal, but the Proglodytes won’t beat God.

    • #19

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