Conservative religious schools all over the country forbid same-sex relationships, from dating to couples’ living in married-student housing, and they fear they will soon be forced to make a wrenching choice. If the Supreme Court this month finds a constitutional right to same-sex marriage, the schools say they will have to abandon their policies that prohibit gay relationships or eventually risk losing their tax-exempt status.
The religious schools are concerned that if they continue to ban gay relationships, the Internal Revenue Service could take away their tax-exempt status as a violation of a “fundamental national public policy” under the reasoning of a 1983 Supreme Court decision that allowed the agency to revoke the tax-exempt status of schools that banned interracial relationships.
In a recent letter to congressional leaders, officials from more than 70 schools, including Catholic high schools and evangelical colleges, said that a Supreme Court ruling approving same-sex marriage would put at risk all schools “adhering to traditional religious and moral values.”
“I am concerned, and I think I’d be remiss, if not naïve, to be otherwise,” said Everett Piper, the president of Oklahoma Wesleyan University, in Bartlesville. “This is not alarmist thinking. This is rational listening.”
The spreading anxiety among conservatives — including Senator Rand Paul, who mentioned the issue in an interview on “The Daily Show” last month — hints at the potential effect of a Supreme Court decision backing the right to same-sex marriage, especially for religious institutions that forbid sexual intimacy outside heterosexual marriage. It also highlights the political battles likely to follow.
Married housing is one concern identified in the letter. Dating policies prohibiting same-sex contact are another, along with questions about whether religious institutions would have to extend benefits to same-sex spouses of employees.
Legal scholars said the scenario of schools’ and charities’ losing their tax-exempt status over their policies on these issues was unlikely — especially in the short term. But they did not rule it out, based on previous civil rights cases and an exchange during Supreme Court arguments in April on whether the Constitution guarantees same-sex couples the right to marry.
“In the Bob Jones case,” Justice Samuel A. Alito Jr. said, referring to the 1983 Supreme Court decision, “the court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?”
Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said that was possible. “I don’t think I can answer that question without knowing more specifics,” he said, “but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is going to be an issue.”
Chief Justice John G. Roberts Jr. asked a similar question. “Would a religious school that has married housing be required to afford such housing to same-sex couples?”
Mr. Verrilli did not rule that out either but said it would “depend on how states work out the balance between their civil rights laws.”
Douglas Laycock, a law professor at the University of Virginia, said Mr. Verrilli’s response to Justice Alito was ill-considered. “Church leaders are worried about this,” he said, particularly because “there is a certain obvious logic” to Justice Alito’s question.
But he added that it was unimaginable that any administration of either party would try to deny a tax exemption anytime soon to a religious institution based on its views on homosexuality. “When gay rights looks like race does today, where you have a handful of crackpots still resisting,” he said, “you might see an administration picking a fight.”
That sort of analysis does not do much to calm religious schools’ concerns, said Richard Garnett, a law professor at Notre Dame.
“Although many people insist that this will not happen,” he said, “they tend to rely on political predictions — which are probably accurate, in the short term — and not on in-principle arguments or distinctions.”
Rick Scarborough, the founder and president of Vision America, a conservative Christian organization based in Nacogdoches, Tex., said he had never seen pastors so angry and ready to resist a Supreme Court ruling. He said 50,000 pastors and church members had signed a petition to the Supreme Court justices warning that they would consider a law recognizing same-sex marriage an “unjust law.”
“If they change the playing field and make what we do out of bounds, we will disobey; we will disrespect this decision,” Mr. Scarborough said in an interview. “We’ll treat it like Dred Scott and other decisions courts have handed down over the years that counter natural law. God made a male and a female, and no amount of surgery is going to change that.”
The letter sent by more than 70 leaders of religious schools — released by the Family Research Council, a conservative religious organization in Washington — asked the Senate majority leader, Mitch McConnell, and the House speaker, John A. Boehner, to support legislation proposed by Senator Mike Lee, Republican of Utah.
Mr. Lee introduced the bill last week, calling it the First Amendment Defense Act.
“Even if President Obama were to veto it, the next Republican president in all likelihood would sign it pretty readily, so, if nothing else, this puts a marker down,” said Rob Schwarzwalder, the senior vice president of the Family Research Council.
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