The Chicken Littles of the evangelical Christian right wing – who say the Lord will cause the sky to fall upon us because it really peeves him or her that gay people may now marry in the United States – raise one worthy issue.
Does this new universal right of two persons of the same sex to marry mean that a church-affiliated private college must now sacrifice the precepts of its religious affiliation and grant the same benefits to same-gender married students as to other married students, mainly, one would think, in the matter of married student housing?
To be more precise: Could such a college lose its religious tax exemption – and thus be made to pay taxes on property and profit, and lose tax deductions for donations, and thus live in a much tougher financial universe — if it persisted in denying those benefits in a way that the Internal Revenue Service or the federal courts might deem discriminatory under the gay-marriage ruling not quite two weeks ago?
Justice Samuel Alito asked that very question of the U.S. solicitor general during oral arguments in the gay-marriage case. And the solicitor general said he honestly didn’t know, but that he would not dare deny that such an issue could well arise.
So then Justice Elena Kagan chimed in to get the solicitor general to clarify – as he promptly did — that his answer did not mean in any way that a church or a pastor could be denied beliefs or practices by a general right of gays to wed.
It was a good question that Alito asked. It was a fair answer the solicitor general gave. And it was an important clarification that Kagan insisted upon.
A religiously affiliated institution of higher education is not a church. Alito’s question was not about the free exercise of religion in the basic way of religion, meaning through church and church-held beliefs. That will be forever untouched so long as the United States stays free. The question centered on the tax-exempt status of colleges.
At worst for religious colleges that discriminate against gays, they might eventually be made to pay taxes if they insisted on continuing that discrimination. But by no conceivable scenario would they be forced to stop believing as they believe and behaving accordingly.
And we are years away from a full exercise of that debate, much less its resolution.
The Supreme Court took great pain to explain that it was granting merely a right to marry for gays. It specifically declined to embroider that ruling with implications for other forms of discrimination, such as housing.
So there exists under that ruling no basis for the IRS, which has enough trouble already, to go after religious colleges over their married-housing policies.
But it is entirely possible that a same-sex married couple would enroll at a religious college, get denied married housing and go to court. And it is possible that one federal district court would rule that the Supreme Court precedent allowed a religious college that latitude while keeping its tax-exempt status and that another federal district court would say it didn’t. So then the Supreme Court would have to take that case.
There is the Bob Jones University example: It had a brazen policy outrageously couched in supposed religion that said students could not attend there if they married or even dated someone of a different race.
The IRS took the South Carolina school’s tax exemption away. Then the Supreme Court ruled that the country was so strongly committed to ending racial discrimination that it was permissible for the IRS to take that action.
In time, Bob Jones relented and permitted a dark-skinned student and a light-skinned student to go the movie together if they wanted — even if, by the perverted religious opinion of university benefactors, mixed-color cinematic experience was forbidden by the Lord.
Then there is the example of the Catholic Church and the University of Notre Dame. The Catholic Church insists that gay marriage is wrong. But Notre Dame, a Catholic institution, grants marital benefits to same-sex employees and students.
It is possible – though some of the fundamentalist and evangelical Christian groups find it hard to imagine – to hold a free religious belief for yourself while not insisting on imposing it on others through public policy. And tax policy is public policy.
We are headed someday, I feel certain, to a generational and legal environment in which gay discrimination will be as egregious as Bob Jones’ racial discrimination, and penalized similarly. We also are headed someday, I feel certain, to an environment in which the model of the Catholic Church and Notre Dame will generally apply.
It will all work itself out. But the meantime, the sky looms over the grandstand. And is falling thereon, some will shout.