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| Democratic Candidate Beto O'Rourke 2019 |
Along with O’Rourke, multiple Democratic candidates have supported the proposed Equality Act which would regulate nonprofits, significantly rescind religious exemptions, and essentially render the Religious Freedom Restoration Act (RFRA) as non-applicable to claims under the Equality Act. New York magazine has commented on the extremity of the Act saying: “According to British Columbia’s definition of human rights... female-only salons have to accept every woman, including those with balls. And according to the proposed Equality Act, the gay lobby’s chief legislative goal, backed by every Democratic candidate, it would be a human right in America as well.” Refusal of service could be seen as a hate crime through the Act. The Act’s intention is to close loopholes that religious groups have found through RFRA and protect the LGBTQ community; however, in doing this it takes away certain religious freedom protections.
O’Rourke’s platform is leading the way with democratic candidates that, if elected, would take extra measures to punish religious institutions for their orthodox views on marriage and sexuality. It also validates evangelical concerns about marriage equality creating a slippery slope for religious freedom as a whole. So the question that is raised is how far can human rights and equality be protected before they are infringing on free exercise of religion, and vice-versa?
If using the Lemon test of Lemon v Kurtzman, this policy agenda would have the primary effect of inhibiting religion. The purpose of this policy agenda would be to punish religious groups for their religiously-based discrimination of LGBTQ persons. In 1970, Walz v Tax Commission of the City of New York found that tax exemptions for religious institutions did not violate the Establishment Clause. It went even further and ruled that government taxing churches could create excessive entanglement, violating the third prong of the Lemon test. However in 1983 Bob Jones University v United States ruled that the school’s tax exempt status could be revoked on the grounds of racial discrimination based on their refusal to allow interracial dating. Bob Jones dropped its anti-interracial dating policy in 2000 and was given its federal tax-exempt status back in 2017.
Giving the government the power to punish religious institutions for certain beliefs could present a dangerously slippery slope. Nick Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty said of O’Rourke’s comments: “Stripping the tax-exempt status of religious groups simply because they hold beliefs that the government dislikes is blatantly unconstitutional. 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.”
If a candidate that holds these views were to be elected as president, I think we could expect to see many more judicial cases pushed through about free-exercise of religion in relation to discrimination of the LGBTQ community. I do not think that we will see many changes legislatively given the very delicate balance of human rights and free-exercise of religion present. Ultimately, I think that sectarian institutions should be allowed to make rules and decisions based on their own belief systems. We have spoken on how the government cannot judge the truth of a religious belief, only the sincerity of it. I think society’s evolving view of marriage does not negate the orthodox beliefs of a religion if they do not agree with the government. As society changes, the Constitutional protections of religion become even more important.
5 comments:
The policy that Beto O’Rourke is supporting is incredibly discriminatory and is surprising that it could be supported by someone who running for president. Removing the tax-exemptions status of a religious group simply because they support different views on the sanctity of marriage is clearly unconstitutional. By removing the tax exemption status of churches that hold orthodox views, the government would be favoring certain religions (establishing them) and limiting the free exercise of others. A double infringement of the first amendment.
I strongly disagree with what Beto O'Rourke is suggesting. Though he is likely pandering to voters, what he is suggesting is absolutely discriminatory and is going against the principles of religious and personal freedom that the Constitution was founded upon. As the comment above states, removing tax-exempt status from an institution just because they do not support what the government deems is important is clearly favoring/establishing some religions over others. This is a very dangerous precedent to set.
I think this will create an extremely dangerous precedent and will cause the Supreme Court to have to rethink the entire concept of establishment. Although the idea that anti discrimination outweighs religious liberty is noble, in this case I believe to strip funding from these groups would be clearly favoring some religions over others. That being said, religious freedom is not a guaranteed right in all cases and the government only swears to protect beliefs, not all actions...
I think that the tax-exempt status of churches and other religious institutions (nonprofit) is an important part of the institution's ability to raise money. I think that, if Beto was to remove the tax-exempt status of religious insitutions that define marriage as a union between "a man and a woman" only, then he would also have to remove the tax-exempt status of all other religious institutions, so as to have, at least facially, a neutral policy on the tax-exempt status of religious institutions. I definitely don't advocate for removal of the tax-exempt statuses of religious institutions, but I think that if he were to do it, he should not be able to discriminate against religions that hold views he doesn't agree with.
The prevalence of this article is fascinating due to having just looked at Bob Jones University v. United States in class on Thursday. While I do agree with the author, it's difficult to ignore the decision in the Bob Jones case which permitted the IRS to revoke the tax-exempt status due to racial discrimination. While some could argue that LGBTQ discrimination is equivalent, I don't believe this is the case. First, one could argue that Beto is being more discriminatory by refusing to give tax-exempt status to those whose religious beliefs he disagrees with. Second, society is clearly changing, and fundamentalist Christians who support discriminatory policies such as preventing interracial marriage are essentially nonexistent. However, as Selby said, "As society changes, the Constitutional protections of religion become even more important." While racial discrimination is clearly outdated and unacceptable in all circumstances, I think it's important to ensure that no "substantial burden" is given to those who are against gay marriage (I don't support this in a moral sense), as this can cause significant problems in regards to the First Amendment.
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