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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Sunday, June 26, 2011

§ 501(c)(3) Organizations That Discriminate Against LGBT Employees

Austin Caster (J.D. 2011, University of St. Thomas) has posted 'Charitable' Discrimination: Why Taxpayers Should Not Have to Fund 501(c)(3) Organizations that Discriminate Against LGBT Employees on SSRN. Here is the abstract:

Until now, the first amendment protection of religious liberty has allowed -- and even publicly funded -- discrimination against LGBT employees, but this article argues that Christian Legal Society v. Martinez changes that analysis. According to Bob Jones University v. United States, organizations that base admissions decisions on racial discrimination violate public policy and cannot receive taxpayer funding. Similarly, Christian Legal Society v. Martinez shows us that universities do not have to fund student organizations that discriminate on the basis of sexual orientation. Therefore, because discrimination based on an immutable minority trait bars taxpayer funding in one instance, this article argues it should also in the other. Private organizations will continue to be allowed to discriminate, but if they do, they should no longer receive public funding through tax-exempt status, taxpayer-funded federal loans, and tax-deductible donations.

The first section of this article explains how and why the tax-exempt status for charitable organizations came about in the United States. Section two applies the original intent of charitable tax-exempt status to LGBT employment discrimination. The third section offers a public policy analysis regarding why equal protection should at least be balanced equally with religious liberty when interests conflict. The fourth section analyzes the case law regarding discrimination and tax-exempt status and shows how Christian Legal Society in particular evolves the debate. The fifth and final section offers analogies of how other countries handle constitutional conflicts regarding equal protection and religious freedom.

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There is an interesting article in the NY Times about how wealthy donors intimidated Republicans into supporting, or at least not actively opposing, the bill. This is consistent with the overall strategy of the gay rights movement, which is to impose an essentially elitist view on the rest of the voters by judicial fiat, financial intimidation, and labeling of all opposition as "bigoted" or "homophobic." Same sex marriage may be right, or wrong, but there's no evidence that most of the public wants it: it's simply being pushed down their throats. I suspect we will see more of a backlash than many people imagine.

Posted by: mike livingston | Jun 26, 2011 7:26:51 AM

would you condone the following law: a black man cannot marry a white woman. that idea was pushed down the throats of a lot of people in at least 10 states if not more.

there are times that "imposing a view" is necessary. we impose the view that murder, manslaughter, and lesser versions of killing a human are crimes. what if a parent had the opportunity to kill the man who hurt their child. are we pushing the view down citizens throats that the law should not be taken into ones own hands and the justice system (hey, could be some judicial fiat in these cases as courts and judges will be involved) has that responsibility.

now, there's also the idea that LBGT should not be parents. how is it that heterosexual people are better, or more suitable, to be parents. and take a look at society, some straights ain't doing such a good job. does a heterosexual couple need to get a degree or take a class in order to be parents? did they start handing out "the official guide to being a parent, every possible thing you could ever imagine included"? parenting is not about sexual orientation. and how about all those people against single parents. here is an opportunity for a child to be raised in a two family home.

but in the end, they will run into the same tax problems that everyone else does, and it is going to be an amazing time to be a lawmaker (judge or legislator) when homosexuals start getting divorced. has any state prepared itself for gay divorce or civil disunion (or secession). Will people demand that the Union must be preserved and that they cannot secede? and of course, all this is going to cross state lines. NY has marriage, so it has divorce laws to apply. what about people who have civil unions who move to NY? and what about anyone who moves to a state that only recognizes marriage as between a man and a woman. how can they get divorced or secede when they cannot be married our unionized in the first place?

it is a mess without all the politics and strongly held beliefs. just remember folks, problems like this mean business for lawyers. there is going to have to be a lot of tax planning with things being the way they are (states all over the map on the issue). more work for tax lawyers. who can object to that?

Posted by: tax guy | Jun 26, 2011 6:49:52 PM

I think the civil rights parallel is an interesting one. The support for gay rights strikes me now as something like civil rights around 1963: the public is sympathetic but hesitant whereas the elite sees it as a "human rights" issue. Is what happened in the 1960s--the elite got way ahead of the mass and the country remains divided 40 years later--nec. something that we want to repeat?

Posted by: mike livingston | Jun 27, 2011 3:04:03 AM

Jim Crow was a disgusting affront to human dignity. It needed to end, even if a bigoted (yes, I used that word) majority wasn't ready.

Posted by: Marketplace | Jun 27, 2011 7:20:17 AM