Is the Obama administration about to wage war on religious schools?
One of the more startling portions of oral arguments today at the Supreme Court was the willingness of the Obama administration’s Solicitor General Donald Verrilli, to admit that religious schools that affirm marriage as the union of a man and a woman may lose their non-profit tax-exempt status if marriage is redefined.
Justice Samuel Alito asked Verrilli whether a religious school that believed marriage was the union of husband and wife would lose their non-profit tax status.
The solicitor general answered: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.”
This should not be an issue. Citizens and organizations that continue to believe the truth about marriage should not be penalized by the government.
Even if the Court says that all 50 states have to recognize a same-sex relationship as a marriage, there is no reason why the government should coerce or penalize institutions of civil society that simply ask to be free—without penalty—to continue to operate in accordance with the belief that marriage is a union of husband and wife.
This line of questioning between Alito and the solicitor general picked up on a theme that Justice Antonin Scalia had started with the lawyer representing the same-sex couples suing the states.
Scalia asked about the religious liberty concerns if the Supreme Court creates a constitutional right to same-sex marriage. When the lawyer replied that we hadn’t seen many religious liberty violations in the states that have democratically redefined marriage, Scalia pounced: that’s his point. Here’s how he explained it:
They are laws. They are not constitutional requirements. That was the whole point of my question. If you let the states do it, you can make an exception. … You can’t do that once it is a constitutional proscription.
Scalia repeated himself, almost verbatim, mere minutes later: “That’s my whole my point. If it’s a state law, you can make those exceptions. But if it’s a constitutional requirement, I don’t see how you can.”
This highlights another reason why it would be wise for the Supreme Court to not disregard the constitutional authority of states to make marriage policy. Not only is there nothing in the Constitution that requires the redefinition of marriage, but a ruling saying that there was could create unimaginable religious liberty violations. These situations are best handled democratically.