A Democratic candidate for president has said religious institutions should be stripped of their tax-exempt status if they oppose same-sex marriage.
On Thursday night, during and Equality Townhall hosted and broadcast on CNN, Robert Francis ("Beto") O’Rourke, a former congressman, was asked by CNN anchor Don Lemon if he thought that "religious institutions like colleges, churches, charities, should they lose their tax exempt status if they oppose same sex marriage?"
O’Rourke answered “yes,” and after applause and cheers from the crowd, added, “there can be no reward, no benefit, no tax break, for anyone or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us. And so, as president, we’re going to make that a priority, and we are going to stop those who are infringing upon the human rights of our fellow Americans.”
Sen. Cory Booker (D-NJ), another presidential candidate, was asked earlier in the night if he would strip the tax-exempt status of churches who were opposed to same-sex marriage. Booker said that such a move would entail a “long legal battle,” but signaled his sympathy with the idea.
“I’m saying I believe fundamentally that discrimination is discrimination,” he said. “And if you are using your position to try to discriminate others, there must be consequences to that. And I will make sure to hold them accountable using the DOJ or whatever investigatory [body].”
Both O’Rourke and Booker are averaging less than 2% in polls of democratic voters.
Of the five largest Christian denominations in the United States--the Catholic Church, the Southern Baptist Convention, the United Methodist Church, the Church of Jesus Christ of Latter-Day Saints, and the Church of God in Christ--none condone or perform same-sex marriages and all consider same-sex activity to be sinful.
Same-sex activity is banned in most mainstream forms of Islam, and most Orthodox Jewish rabbis will not conduct same-sex marriages.
Tax-exempt status for religious institutions is protected by Supreme Court precedent.
In the 1970 case Walz v. Tax Commission of the City of New York, the court found that exempting religious institutions from taxes did not violate the Establishment Clause of the First Amendment.
On the contrary, the Court decided that taxing churches could increase government entanglement with religion, as a church may be unable to pay its tax bill and be shut down. In order to avoid this from happening, the court instead the court found in favor of continuing to exempt religious institutions from taxation.
Tax exemptions for organizations opposed to same-sex marriage have been an open question since the oral arguments of Obergefell v. Hodges, the 2015 case that resultred in same-sex marriage being legalized throughout the country.
During arguments, Justice Samuel Alito asked Solicitor General Donald B. Verrilli Jr., who was arguing on behalf of same-sex couples, if colleges or churches would face the same fate as Bob Jones University. In the 1983 case Bob Jones University v. United States, the Supreme Court found that the IRS was right to deny a tax exemption to the school on the grounds that it engaged in racial discrimination by banning inter-racial dating (Bob Jones University dropped its anti-interracial dating policy in 2000, and regained federal tax-exempt status in 2017).
At the time of oral arguments in Hodges, Verrilli admitted that he did not have an answer to Alito’s question “without knowing more specifics,” and said that “it’s certainly going to be an issue.”
Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, told CNA that he did not believe O’Rourke’s suggestion was constitutionally sound.
"Stripping the tax-exempt status of religious groups simply because they hold beliefs that the government dislikes is blatantly unconstitutional,” said Goodrich.
“It's also foolish because those groups provide billions of dollars in essential social services to their communities. Churches and ministries should be allowed to hold centuries-old beliefs without fear of government retribution."
Transgender issues were also discussed on Thursday night, and transgender activists interrupted the townhall several times throughout the event. A nine-year-old girl who identifies as a transgender boy questioned frontrunner Sen. Elizabeth Warren (D-MA) about what she would do to protect transgender children in schools. Warren said she would dismiss the current Secretary of Education Betsy DeVos, who she characterized as one of the worst people to hold the position.
"I want to make sure that the person I think is the right secretary of education meets you and and hears your story, and then I want you to tell me if you think that's the right person and then we'll make the deal," Warren said to the child.