Religious Liberty at Risk as Supreme Court Approaches Gay Marriage Decision

Rob Schwarzwalder | Family Research Council | Tuesday, May 19, 2015

Religious Liberty at Risk as Supreme Court Approaches Gay Marriage Decision

Leslie Loftis is an attorney (J.D., University of Texas) whose primary role these days is a wife and mother of four young children (good call on the priorities, Leslie).  In The Federalist, she has written one of the most thorough analyses of the potential of religious entities losing their tax-exempt status should the Supreme Court miraculously find a “right” to same-sex “marriage” in the U.S. Constitution in their ruling on the issue next month.  


Here are three trenchant excerpts:


The Religion Clauses of the First Amendment have left attacking the tax-exempt status of religious institutions as the only viable way for government to control religion in the United States.


That government may make no law establishing religion or prohibiting the free exercise thereof is a clear statement that the power of government does not extend over the subject of religion. Therefore, religious institutions are exempt from taxation, not by tax code, but by self-evident, sound principles. That’s the simple summary.


The taxman cometh, and not to raid our individual pocketbooks, but to radically impose burdens on the free exercise of religion. The power to tax does involve the power to destroy, and of late the IRS has given We the People little confidence that it would not use its power destructively. While religious institutions are subject to the taxing power of government, they are vulnerable.


Loftis cites George Mason University School of Law professor Michel Greve, who reminds concerned observers of something we should already know: activist groups supporting same-sex “marriage” are no doubt ready to file legal papers demanding that institutions unwilling to cavil to what they see as a favorable Court ruling lose their tax-exempt position with the IRS: “the LGBT folks already have (anti-tax exempt) complaints and briefs in their drawers, to be filed (almost ‘certainly’) on July 1.  And because DoJ and the IRS and OCR, in their last remaining eighteen months in office, are in a hurry to roll over to their constituencies and to hammer the hold-outs, in meticulous observance of the law. A hallmark of this administration. Or maybe they’ll hand out waivers."


Writing in The Weekly Standard, former Reagan-era Justice Department public affairs director Terry Eastland notes that if same-sex “marriage” is endorsed by the Court, “there will be conflicts with religious liberty, since most opposition to same-sex marriage is grounded in religious belief.”


Exactly.  To pretend that in a world where legal compliance means whatever the federal courts say it does that churches, ministries, religious colleges and universities, faith-based primary and secondary schools, etc. will be immune to legal challenges to practices animated and informed by their religious convictions is pure fantasy.


“One of the great accomplishments of the American Revolution,” writes attorney David French in National Review, “was the creation of a state that allowed people of all faiths, of no faith, and of radically divergent views of liberty to carve out a place in a new nation, sustain their own thriving communities of shared purpose, and live largely free of concern that the state would move to suppress or silence your faith and viewpoint.”  


Chillingly, though, French argues that this foundational principle of our Republic is being jettisoned before our eyes.  To the Left, “you are either a revolutionary or an enemy, and no lesser light than the federal government’s chief constitutional advocate has now raised the specter of a legal regime far worse than ‘separation of church and state.’ For the sexual revolutionaries, it’s the state against the church.”


In recent months, we have seen myriad examples of how states, employers, and even the U.S. military have penalized people of Christian faith who refuse to participate commercially or professionally in same-sex unions or herald such unions as morally valid.  FRC has documented dozens of these cases on our new Free to Believe site.


Brothers and sisters in our living Lord: This is real.  It is here.  The religious liberties we have always taken for granted are at risk.  That’s not “scaremongering.”  Legal experts of high standing confirm this view.


Pray that God would move upon our Supreme Court justices’ hearts to rule commensurate with the clear text of the Constitution.  Pray that God’s people would be prepared to stand against all potential legal and fiscal penalties when they refuse to give-in to demands they yield on biblical truth for the sake of federal tax benefits.  And call upon your Members of Congress and Senators to support the Marriage and Religion Freedom Act (MARFA), which would, as noted by my colleagues Ken Blackwell and Travis Weber,


… ensure that the federal government cannot discriminate or take action against private entities because they act in accordance with a moral or religious belief that marriage is between a man and a woman. Under MARFA, the government is prohibited from discriminating in the areas of tax-exempt status, grants, contracts, licensing, certification, accreditation, or disbursement of benefits—among other areas—against a private entity simply because of that entity’s belief about marriage.


To learn more about the +Marriage and Religious Freedom Act and how you can help move it forward in Congress, read Blackwell and Weber’s op-ed in The Hill, “Will marriage ruling jeopardize critical private-public partnerships?



Publication date: May 19, 2015