COMMENTARY

The sky is … falling?

The most liberal person in mainstream American politics, U.S. Sen. Bernie Sanders of Vermont, said over the weekend that he respects religious liberty and would never support removing any tax exemption from religiously affiliated organizations.

The Christian Post, the most comprehensive source of evangelical Christian news in the world, published commentary last week explaining that, while some religious-based worry about the same-sex marriage ruling is appropriate, other parts of it have been exaggerated.

“Some of the reactions from Christian leaders and politicians have been overblown,” the publication stated. “Churches will not be required to host gay weddings and pastors will not be required to conduct gay wedding ceremonies.”

The Christian Post continued: “There have been at least two [opinion columns] since the Court’s gay marriage decision arguing for getting rid of the tax exemption for churches … but those opinion writers are on the fringe. There is neither the political will nor opportunity to make that happen.”

Still, the Chicken Littles of the evangelical Christian right wing — who say the Lord will cause the sky to fall upon us because it really peeves him or her that gay people may now marry in the United States — raise a couple of issues that I can’t help but find potentially relevant.

First, the labor commissioner in Oregon last week finalized an order fining a man and his wife who operated a bakery a total of $135,000 for refusing to bake a wedding cake for a gay couple.

The commissioner seemed to have no choice under Oregon law, which plainly says commercial service cannot be denied on a discriminatory basis to protected groups of citizens, specifically including homosexuals.

So that’s one state, Oregon, and one case that has yet to make it to court. At this point it’s a matter of administrative regulation, and the fined bakers intend to appeal to the Oregon Court of Appeals.

But it seems to me that the matter poses a potential collision of constitutional principles that could well make it someday all the way to the U.S. Supreme Court.

The gay-marriage case was about government’s requirement to permit gay marriage, and that alone. It does not infringe remotely on religious rights.

In the entirely separate Oregon matter, state law grants the U.S. Constitution’s equal protection under the law to gay people who are guaranteed freedom from discrimination. But the bakers believe and will continue to argue that the state law violates their First Amendment right to free exercise of their religion.

One would suspect the Oregon Court of Appeals to affirm the state law and the labor commissioner’s ruling. After that, the question of whether the state law was constitutionally fair to the bakers and their religious liberty conceivably could go to federal court.

Once there, a scenario would exist by which the collision — a state’s authority to protect a gay couple’s right to avoid discrimination in a way that arguably removes a baker couple’s right to free religion — could go all the way to the U.S. Supreme Court.

I may be the only person in the country who would be satisfied with either answer, which surely earns me the wrath of both sides.

I would be happy with case law protecting a gay couple from discrimination in such a situation. I would be equally happy with case law protecting the bakers’ right to decline to provide their service because of religion. I would not declare doomsday in either event. But I suspect losers on either side would.

Meanwhile, on the matter to which the liberal’s liberal, Bernie Sanders, referred: Does this new universal right of two persons of the same sex to marry mean that a church-affiliated private college could be made to sacrifice the precepts of its religious affiliation and grant the same benefits to same-gender married students as to other married students, mainly, one would think, in the matter of married student housing?

To be more precise: Could such a college eventually lose its religious tax exemption — and thus be made to pay taxes on property and profit, and lose tax deductions for donations, and thus live in a much tougher financial universe — if it persisted in denying those benefits in a way that the Internal Revenue Service or the federal courts might deem discriminatory?

I didn’t invent the question. Associate Justice Samuel Alito asked it specifically of the U.S. solicitor general during oral arguments in the gay-marriage case. And the solicitor general said he honestly didn’t know, but that he would not dare deny that such an issue could well arise.

So then Associate Justice Elena Kagan chimed in to get the solicitor general to clarify — as he promptly did — that his answer did not mean in any way that a church or a pastor could be denied beliefs or practices by a general right of gays to wed.

It was a good question that Alito asked. It was a fair answer the solicitor general gave. And it was an important clarification that Kagan insisted upon.

A religiously affiliated institution of higher education is not a church. Alito’s question was not about the free exercise of religion in the basic way of religion, meaning through church and church-held beliefs. The question centered on the tax-exempt status of colleges.

At worst for religious colleges that discriminate against gays, they might eventually be made to pay taxes if they insisted on continuing that discrimination.

But we are years away from a full exercise of that debate, much less its resolution.

The Supreme Court took great pain two weeks ago to explain that it was granting merely a right to marry for gays. It specifically declined to embroider that ruling with implications for other forms of discrimination, such as housing.

So there exists under that ruling no basis for the IRS, which has enough trouble already, to go after religious colleges over their married-housing policies.

But it is entirely possible that a same-sex married couple would enroll at a religious college, get denied married housing and go to court. And it is possible that one federal district court would rule that the Supreme Court precedent allowed a religious college that latitude while keeping its tax-exempt status and that another federal district court, confronted with the same question in its district, would say it didn’t. So then the Supreme Court would have to take that case.

There is the Bob Jones University example: It had a brazen policy outrageously couched in supposed religion that said students could not attend there if they were married to, or even dated, someone of a different race.

The IRS took the South Carolina school’s tax exemption away. Then the Supreme Court ruled that the country was so strongly committed to ending racial discrimination that it was permissible for the IRS to take that action.

In time, that time being the year 2000, Bob Jones relented on its racist policies.

Then there is the better example of the Catholic Church and the University of Notre Dame. The Catholic Church insists that gay marriage is wrong. But Notre Dame, a Catholic institution existing in the real world, grants marital benefits to same-sex employees and students.

It is possible — though some of the fundamentalist and evangelical Christian groups find it hard to imagine — to hold a free religious belief for yourself while not insisting on imposing it on others through public policy. And tax policy is public policy.

We are headed someday, I feel certain, to a generational and legal environment in which gay discrimination will be deemed as egregious as Bob Jones’ racial discrimination, and prohibited and penalized similarly. We also are headed someday, I feel certain, to an environment in which the model of the Catholic Church and Notre Dame will generally apply.

We’ll not be attacking religion. We’ll be trying to keep religion and constitutional rights separated into their appropriate compartments.

It will all work itself out. But the meantime, the sky looms over the grandstand. And is falling thereon, some will shout.

John Brummett’s column appears regularly in the Arkansas Democrat-Gazette. Email him at jbrummett@arkansasonline.com. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.

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