Let me begin by restating that I am in favor of same-sex marriage. While the logic behind Supreme Court justice Anthony Kennedy’s legal opinion which decreed same-sex marriage to be the law of the land last week is dubious, I believe nonetheless that same-sex couples who live in the United States and wish to marry ought to be able to do so.
By the same token, I do not believe churches, synagogues, mosques or other religious assemblies should be obligated to perform same-sex weddings if such unions go against their teachings. That decision must be left to the churches and their congregations to decide. If the federal government sees fit to either compel churches to perform same-sex marriages or punish them for refusing to do so then it is interfering in the internal affairs of religious congregations. Churches would cease to be autonomous organizations and become functionaries of the whims of the government. This would be a violation of the separation of church and state.
As Rich Lowry of National Review Online noted shortly after the Supreme Court’s ruling, “The gay-marriage debate isn’t over; it has merely entered a new phase.” To be specific, Lowry notes, “Already, there are a few calls to remove the tax exemption of churches now opposed to what the Supreme Court has deemed a fundamental right.”
Enter Felix Salmon of Fusion:
Because now that the US government formally recognizes marriage equality as a fundamental right, it really shouldn’t skew the tax code so as to give millions of dollars in tax breaks to groups which remain steadfastly bigoted on the subject.
I’m talking, of course, about churches.
Salmon argues that churches which refuse to perform same-sex marriages should have their tax exempt status revoked in the same manner that Bob Jones University did after refusing to admit students who were part of an interracial marriage or engaged in interracial dating. Citing the 1983 U.S. Supreme Court decision which upheld the IRS’ removal of Bob Jones University’s tax exempt status, Salmon writes:
In the Bob Jones case, the US government made a very important statement. It’s not enough, they said, to support the right of interracial couples to date and get married; it’s also important to register official disapproval of any organizations which fail to support that right. To be given exemption from paying taxes is a special privilege bestowed by the state on deserving organizations. But there’s nothing deserving about an organization that bans interracial dating. So, the state is entirely within its powers to remove that privilege.
The same argument can and should be applied to gay marriage. If your organization does not support the right of gay men and women to marry, then the government should be very clear that you’re in the wrong. And it should certainly not bend over backwards to give you the privilege of tax exemption.
However, what Salmon conveniently omits with regard to the Bob Jones case is that it does not apply to churches. The Court stated, “We deal here only with religious schools – not with churches or other purely religious institutions; here, the governmental interest is in denying public support to racial discrimination in education.”
Contrary to Salmon’s claims that the government should be very clear in telling churches they in the wrong for not supporting same-sex marriage, there is no absolutely governmental interest where it concerns the affairs of churches or purely religious institutions. Simply put, the government has no business telling churches and purely religious institutions that they are in the wrong about opposition to gay marriage or any other matter.
One such matter is war. When the Bush Administration decided to lead a coalition into Iraq to remove Saddam Hussein there were numerous churches which made their opposition known. What if the Bush Administration had saw fit to remove the tax-exempt status of these churches for having opposed the War in Iraq? What if they took it upon themselves to tell churches they were in the wrong about going into Iraq. There would have been an uproar above and beyond the uproar against the war and rightly so. It is inconceivable that those who wish to remove the tax exempt status of churches for refusing to perform same-sex marriages would have supported a similar measure against the very same churches concerning the War in Iraq.
Another such matter is the Boycott, Divestment, and Sanctions (BDS) movement against Israel with regard to its alleged mistreatment of the Palestinians. Over the years, a number of churches have seen fit to boycott Israel and divest their holdings in Israeli companies or companies which do business with Israel in the Gaza Strip or the West Bank. The United Church of Christ decided to do this last week to which I made my objections known.
As much I abhor the decision of the UCC to participate in a campaign which seeks to delegitimize the State of Israel and thereby increase global anti-Semitism, I believe it would be equally wrong for the IRS to revoke the tax exempt status of the UCC and its affiliates. If UCC or any other church boycotts Israel it isn’t the place of the federal government to tell them they are in the wrong. While I and others are entitled to believe their decision to support the BDS movement is morally wrong and reprehensible, it is still their decision to make.
With this in mind, while I might disagree with a church for not seeing fit to perform a same-sex marriage, it is ultimately their decision to make and their decision alone. The federal government must leave churches, synagogues, mosques, and other religious assemblies alone in this matter. If they do not see fit to leave them alone then the very concept of the separation of church and state will have lost all meaning. It would end the separation of church and state as we know it.