Should the Feds Deny Tax Breaks to Churches That Don't Recognize Gay Marriage?

At CNN’s Equality Town Hall with Democratic presidential candidates on Thursday night, former congressman and 2020 aspirant Beto O’Rourke was asked if religious institutions (such as churches, schools, and hospitals) should lose their tax-exempt status if they oppose same-sex marriage. O’Rourke replied:

“Yes. There can be no reward, no benefit, no tax break for anyone or any institution in America that denies the full human rights and the full civil rights of every single one of us. So as president, we’re going to make that a priority, and we’re going to stop those who are infringing on the human rights of our fellow Americans.”

If put into action, it’s a near-certainty that the constitutionality of O’Rourke’s plan would be challenged in the courts, and the Supreme Court has weighed in on the issue in the past. 

In Speiser v. Randall (1958), the Supreme Court issued a 7-1 ruling that prohibits the denial of tax exemptions to individuals or organizations based on the viewpoint they communicate. The case concerned the state of California’s denial of a veteran’s tax benefit because they refused to swear an oath not to illegally overthrow the government. Justice William Brennan explained the reasoning for the decision in the majority opinion:

“[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.”

While the government can’t deny a tax benefit to an organization because of the viewpoint it advocates, it can deny tax benefits based on actions taken. In Bob Jones University v. U.S. (1982), the Supreme Court ruled 8-1 that the IRS was allowed to deny the tax-exempt status of private, religious schools that implemented policies to prohibit interracial dating or marriage, or maintained a racially discriminatory admissions policy.

— Eric Revell

(Photo Credit: Gage Skidmore via Flickr / Creative Commons)