Paul L. Caron

Thursday, October 23, 2008

Cain: CA Churches Will Not Lose Tax Exemptions for Performing Same-Sex Marriages If Prop 8 Fails

Patricia Cain (Santa Clara) has published Churches Will Not Lose Tax Exemptions for Performing Same Sex Marriages:

The proponents of Proposition 8 have unleashed an ad in which a law professor proclaims that unless marriage rights are denied to same-sex couples, churches risk losing their tax exemptions. The claim is pure nonsense and any lawyer who makes such a claim should apologize for misleading the many religious leaders and congregations in this state who, because they are not legal experts, rely on those of us who are. ...

There is absolutely no legal basis for the claim in the proponent's ad that churches may lose their tax exemption. The claim is nothing more than an attempt by the opponents of equal marriage to instill fear among the religious faithful in the hopes that they will flock to the ballot box and cast a vote to protect their churches.

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Surely religious organizations refuse to do all manner of marriages, and have done for decades, without facing any IRS consequences?

For example, many churches won't marry people unless at least one (and at often both) are members of the relevant faith. Roman Catholic churches need at least one of the pair to be Catholic and also require an assurance that any children will be brought up as Catholics. Far, far more people are excluded by that requirement than by the fact they also ban homosexual weddings, yet it has never caused any issues for their tax status.

Non-church organizations are indeed a more interesting question. However, surely BJU vs US was a federal case relating to federal civil rights laws and it is a bit of a stretch to say that federal public policy would be declared to be determined by gay marriage laws valid in only three (?) of the fifty states? With explicit anti-gay marriage clauses already inserted into several other state laws/constitutions I doubt that gay marriage rights would be seen as settled federal public policy.

Posted by: non habet | Oct 24, 2008 4:14:33 PM

Maybe Professor Cain's wall of separation would withstand such a legal assault on the exempt status of churches (I am skeptical), but what about other non-church religious organizations? For example what if, under a no-Prop 8 regime, a religious school dismisses a teacher or student for marrying a member of the same-sex? The Bob Jones University case held that violations of clearly defined public policy can be cause for revocation of exemption. Without Prop 8, advocates for same-sex marriage would have a clearly defined public policy basis to seek the revocation of the exemption of such a school. I don't think it is a far reach at all to say that this will be the situation faced by many religious organizations without Prop 8 and perhaps even with it, since the proposition doesn't change the court's holding or dicta.

Posted by: Nemo Dat | Oct 23, 2008 11:07:19 AM