Now that the Supreme Court has ruled that gay marriage is a fundamental human right under the Constitution, the fight over tax-exempt status for churches and religious schools that reject gay marriage as a matter of faith has begun.
And the Justices cannot say they didn’t see this coming.
After all, the Obama administration’s top lawyer said during oral arguments said that the charitable tax status of religious organizations that oppose gay marriage was “certainly going to be an issue” if the court found that gay marriage was a civil right.
Now Senate Democrats are faced with job of dealing with what they wished for and they do not know where it is safe to step.
Earlier this week, Senator Dick Durbin (D-IL), the second most powerful Democrat in the Senate, said he was unsure if he would support revoking the charitable tax status of religious schools telling The Weekly Standard that:
“There’s no question this was an historic decision, and now we’re going to go through a series of suggestions for new laws to implement it…” “I can’t predict how this will end. But from the beginning we have said that when it comes to marriage, religions can decide what their standards will be.”
When asked if religious protections would extend beyond houses of worship to religious schools that require employees to affirm their faith’s teaching about marriage, Durban said:
“Getting into a challenging area, and I don’t have a quick answer to you.” “I’ll have to think about it long and hard.”
Even Senator Bernie Sanders, a Vermont socialist who caucuses with Democrats in the Senate and is running for the Democratic presidential nomination this year, said “I don’t know if I would go there” when asked if religious institutions opposed to same-sex marriage should lose their tax status.
Senator Ben Cardin (D-MD) on the other hand appeared to be open to the idea of taking away the charitable tax status of some religious institutions because:
“Religious freedom allows you to deal with teaching your religious principles without interference of the government.
But when you’re dealing with rights of third parties, then the protections are afforded for you to get the privileges of your tax-exempt status.” “You have the freedom to teach, to preach the way you believe without losing your tax-exempt status, the answer is yes. If you are affecting the rights of third parties, then you’ve crossed the line.”
“Employment is subject to protections.” “I’m not sure how it applies to Christian-run schools.”
Senator Tammy Baldwin (D-WI) pushed back hard saying she strongly opposed revoking the tax-exempt status of religious schools opposed to same-sex marriage saying:
“I just think that religious organizations should not be taxed,” Baldwin told me. “The last thing we want is the government getting into looking at the principles of each particular faith and judging it. That is wrong and shouldn’t occur.”
But is Baldwin splitting hairs? Earlier this month, religious liberty advocates criticized Baldwin for saying that the First Amendment’ protection of the free exercise of religion does not protect “businesses and individuals” engaged in commerce.
That means Baldwin supports states that have fined and punished bakers, florists and other businesses owned by faithful Christians who have declined to participate in same-sex weddings. In fact, Baldwin expressly said that religious dissenters who decline to work gay weddings to the owners of “lunch counters that wouldn’t let people of color sit [there].”
Mainstream Democrats may have won on the issue of same sex marriage at the Supreme Court but opened up dozens of issues that must be addressed in implementing the consequences of the ruling leaving conservatives with plenty of targets to shoot at as the 2016 campaign unfolds.
