Will Churches Lose Their Tax-Exempt Status in the Wake of the Supreme Court's Gay Marriage Ruling?

The dust had barely settled on the Supreme Court's gay marriage ruling before some critics began ramping up suggestions that churches that are theologically opposed to gay marriage deserve to lose their tax-exempt status — a proposal that conservative attorneys and a charitable giving expert patently dismissed in separate statements to TheBlaze this week.

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Calls for houses of worship to lose their 501(c)(3) status are nothing new, though some conservative critics have warned in recent months and years that the legalization of same-sex marriage would possibly revitalize calls for the Internal Revenue Service to rethink the issue, putting churches in a potentially difficult position.

The authors of two articles published over the past week have done just that, breathing new life into the controversial subject.

In an op-ed published by Fusion, financial writer Felix Salmon made his stance on the matter crystal-clear in his first sentence: "Now that the U.S. government formally recognizes marriage equality as a fundamental right, it really shouldn’t skew the tax code so as to give millions of dollars in tax breaks to groups which remain steadfastly bigoted on the subject."

Salmon argued that the "U.S. government subsidizes churches" and that it costs billions of dollars each year to do so — a dynamic that he fervently opposes, noting that the U.S. Constitution doesn't grant this as a right to houses of worship.

While he believes that churches can't be targeted and forced to pay more than other groups, Salmon said that the government reserves the right to "stop giving them special tax-free privileges." But he doesn't stop there, writing that the Supreme Court's ruling that gay marriage is a "fundamental right" means, in his view, that tax-exempt groups cannot disallow it and retain that status.

"It’s abundantly clear that religious institutions have no right to tax exemption," he continued, citing 1983 Supreme Court case Bob Jones University v. the United States, in which the court found that a college can be denied tax-exempt status if it refuses to allow interracial relationships.

And since churches are the primary social drivers against homosexuality, Salmon said, they don't necessarily deserve the tax benefit. 

"If your organization does not support the right of gay men and women to marry, then the government should be very clear that you’re in the wrong," he said. "And it should certainly not bend over backwards to give you the privilege of tax exemption."

While Salmon said that religious freedom means that groups can hold "whatever crazy views" they want, if those beliefs are "fanatical and hurtful" and don't abide by the law, that they don't deserve to be tax-exempt, offering support for the abolishment of this tax benefit for all churches and not just those considered anti-gay.

Salmon, of course, isn't alone in making these claims.

New York Times columnist Mark Oppenheimer also penned a piece for Time magazine titled, "Now’s the Time To End Tax Exemptions for Religious Institutions." In also citing the Bob Jones University case, Oppenheimer went on to say that now is the time to rethink the way in which religious and nonprofit organizations are treated under the law.

"Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step," he wrote. "It’s time to abolish, or greatly diminish, their tax-exempt statuses."

Oppenheimer wrote that it lacks sense to have the IRS deciding which institutions are religious in nature, adding that wealthy universities like Yale are paying very little in taxes. As for anyone worrying about revoking tax-exempt statuses for organizations that feed and clothe the poor, Oppenheimer said that the government would actually be equipped to do more.

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"Defenders of tax exemptions and deductions argue that if we got rid of them charitable giving would drop. It surely would, although how much, we can’t say," he said. "But of course government revenue would go up, and that money could be used to, say, house the homeless and feed the hungry. We’d have fewer church soup kitchens — but countries that truly care about poverty don’t rely on churches to run soup kitchens."

Again, these views are not new, but the fact that they come just days after the Supreme Court's landmark ruling will certainly have some Christians and conservatives on edge. TheBlaze spoke with Rick Dunham, president and CEO of Dunham+Company, a fundraising consultancy firm, to discuss the debate over 501(c)(3) statuses and to learn more about why nonprofits and churches have been granted tax exemption.

Dunham said that he believes that there are misconceptions about churches that drive some of the calls for them to lose this status, noting that exemptions are only given to "charities that are providing benefit to society."

"Certain people believe that churches are an in-grown group that do no society benefit — a glorified country club," he said. "But, in reality, if you do look at work of churches around America — the most significant is the Salvation Army — they're doing tremendously good work across the country."

Dunham continued, "What you're saying is we should take tax-exempt status away from the Salvation Army, which is arguably making one of the greatest impacts we have in society today helping the poor."

While he said that some estimates show that the tax deduction costs the U.S. government around $50 billion per year, he noted that charitable giving in 2014 was at a record $358 billion. And since donations are tax-deductible, they also benefit donors who freely give to churches and organizations.

Dunham said it's certainly possible that, like in any industry, there are abuses at the hands of churches and nonprofits, but that he operates by the principle that "you manage to the rule, not the exception."

"There are exceptions out there ... [but] at the end of the day, the charitable sector is proving tremendous good and support for families,  communities and youth," he said.

Mat Staver, chairman of Liberty Counsel, a conservative legal firm, agreed with Dunham that churches and nonprofits provide benefits to society, though he added another reason why houses of worship should retain its tax-exempt status: to maintain their independence.

"Churches also have tax-exemption in order to keep government out of the affairs of churches. This is the essence of having the government separate from the church," he told TheBlaze. "The power to tax is the power to destroy, according to the Supreme Court. If government could tax churches then government can control them and interfere with their mission."

He continued, "The First Amendment and religious free exercise protections protect churches for good reason in this area."

Erin Mersino, senior trial counsel at Thomas More Law Center, another conservative legal firm, said there's no basis for the government being able to decide what is and is not acceptable when it comes to religious beliefs. Targeting churches' tax-exempt statuses would thus be legally problematic.

"By stripping churches who believe and practice a doctrine that has existed for the millennia, namely, that homosexual conduct and same-sex marriage is sinful, while allowing other organizations to maintain their 501(c)(3) status because they hold different religious beliefs, is blatant discrimination," Mersino said. "Any attempts to strip a church of its 501(c)(3) status due to a church’s view on homosexuality should be accurately labeled — it is religious persecution."

Her view calls Salmon's more pointed perspective on targeting churches into question, though Oppenheimer's argument that it is most viable to go after the statuses of all organizations is a bit broader.

Attorney John W. Whitehead of the Rutherford Institute said calls to strip tax-exempt status as a result of stances on gay marriage are problematic in that they ask a person or group to "forfeit a governmental benefit because of the exercise of First Amendment rights" — a dynamic that is said is "wholly contrary to the Constitution."

"The 'unconstitutional conditions' doctrine forbids conditioning a governmental benefit on the surrender of a constitutional right," Whitehead said. "This doctrine has particular application to churches, which engage in both the fundamental freedom of religious exercise and speech."

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Barry W. Lynn, executive director of Americans United for Separation of Church and State, a First Amendment watchdog that sometimes clashes with conservative legal firms over the separation of church and state, said that the Constitution doesn't mention or guarantee tax-exemption for churches, but that it is permissible so long as the benefit is available to all nonprofits who fit similar categories.

"If it were offered only to houses of worship, it would likely be an unconstitutional benefit to religion," he said. "But tax exemption has been extended to many other types of organizations, which, the Supreme Court has indicated, solves the constitutional issue."

Lynn continued, "We agree with the finding in Walz v. Tax Commission of New York. Tax exemption for churches is not required by the Constitution, but if it is offered under statute, it should be given to similarly situated secular entities as well."

Despite the recent calls from some advocating that churches lose their tax-exempt status, Lynn said that he believes much of the discussion surrounding gay marriage and the Internal Revenue Service is trumped up and that a church, under current law, can only lose tax-exempt status if it endorses or opposes a political candidate.

"The talk about churches losing tax exemption for their viewpoints is like the argument that religious leaders can be forced to marry same-sex couples – it’s hyperbolic," he said. "The possibility of a church losing its tax exemption for advocating anti-LGBT views is effectively zero."

But many others, like Fox News host Bill O'Reilly, worry that the Supreme Court's gay marriage ruling will open the door to lawsuits that are aimed at forcing the hands of religious organizations.

“It’s just a matter of time before lawsuits are filed against churches and religious organizations, trying to strip them of their tax-exempt status if they don’t toe the line on gay marriage and other progressive causes,” O’Reilly said on his show on Wednesday night.

For now, such a prospect seems unlikely, but many faithful fear that it's entirely possible down the line.