Posted on 10/30/2008 9:09:00 PM PDT by nickcarraway
Whether disapproving churches could be forced to choose between providing services to gay couples or losing their tax-exempt status is one of the questions swirling around Proposition 8, the Nov. 4 ballot measure that would ban same-sex marriage.
AdvertisementIn its May ruling legalizing same-sex marriage, the state Supreme Court made clear that it did not intend for the decision to be interpreted as interfering with a church's right to determine who it marries. Yesterday, 59 California law professors released a one-page position paper making their case that the state and federal constitutions provide ironclad protections for churches.
“No church's tax-exempt status will be affected by its decisions about whether to solemnize marriages between same-sex couples,” they wrote.
Significantly, those signing the letter and other legal experts also argue that nothing about Proposition 8, win or lose, will change existing tax law because the state bars discrimination based on marital status or sexual orientation.
“If they were already prohibited from discriminatory behavior, they will still be prohibited” regardless of the election outcome, said Vikram Amar, a law professor at the University of California Davis.
Online: For the list of law professors and their statement on Proposition 8, go to uniontrib.com/more/documents
However, supporters of Proposition 8 warn of the fallout if voters reject the ban on same-sex marriage, including sharp restrictions on commercial uses of church property usually open to the public and threats to tax exemptions if they refuse to comply.
“They (opponents of Proposition 8) are desperately trying to downplay this major shift in the law,” said Andrew Pugno, a Folsom attorney advising the Yes on 8 campaign.
Supporters of Proposition 8 point to New Jersey, where a church lost part of its tax exemption because it refused to rent out a publicly used pavilion, located away from the church proper, for a same-sex commitment ceremony. Same-sex marriage is not legal in New Jersey.
California's high court focused on marriage and appeared to anticipate potential conflicts with churches, offering language that could establish precedent if complaints are brought by same-sex couples who were refused marriage at a given church.
The court ruled that “affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples; and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”
Some church leaders are not convinced.
Phillip Goudeaux, pastor of Calvary Christian Center in Sacramento, noted that four judges overturned the results of the 2000 statutory ban on same-sex marriage.
“Everything is subject to change,” Goudeaux said.
The risk, some suggest, applies only if a church discriminates as part of its commercial ventures, such as renting property or charging fees for day care.
“The farther away you get from the core of what a church does and it looks more like a business, then it becomes subject to California's anti-discrimination law,” said Brad Sears, executive director of the Williams Institute, which focuses on sexual-orientation law and public policy at UCLA.
The Unruh Civil Rights Act, the bedrock of California's civil rights law, states: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation, are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
But Pugno, the Yes on 8 attorney, says that a church – or individuals – should not be forced to abandon moral principles. He points to the New Jersey case, where the Methodist Ocean Grove Camp Meeting Association lost a share of its tax exemption for rejecting the ceremony.
“The legal justification is the religious freedom of the property owners to see their property used in ways that are consistent with their beliefs,” Pugno said.
No California church has lost its tax exemption on those grounds, according to state officials.
A potentially landmark guide is a case that focused on racial discrimination allegations at Bob Jones University, which had denied admission to interracial couples. In 1983, the U.S. Supreme Court held 8-1 that charities and nonprofits cannot maintain an IRS tax exemption if their practices run contrary to “established public policy.”
California's marital-status and sexual-orientation protections could be construed as established public policy, according to some legal experts.
“Although the high court did not go beyond race in the text of its opinion, the ruling could be interpreted as barring charities from discriminating based on sexual orientation – at least in an environment in which such discrimination violates established public policy,” said David Brennen of the University of Georgia School of Law, who specializes in nonprofit tax law.
Ironclad until it gets in front of a liberal judge.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
On Sunday a group of protestors went to the LDS Temple in Oakland California and were demanding that the church be taxed on its property and investments. There are federal tax authorities and state tax authorities. I doubt this group of attorneys/professors could guarantee immunity from local taxation, or federal taxation. The Boy Scouts won the right to ban homosexuals as scout leaders yet it has not stopped the gay rights groups from throwing up every roadblock possible to Boy Scout operations. The issue isn’t whether a specific exemption or law will apply, the issue is whether gay marriage will be enshrined as a basic right because then the laws will tumble at some point down the road. The gay rights groups intend to punish in any way possible anyone who disagrees with their lifestyle choices.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Wow, I didn't know that one. That is Scary.
So, any stare decisis level issue threatens a church IRS exemption if someone wishes to make an issue of it.
How many letters are in the word abortion?
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Canada....good point.
That whole tax exempt thing is just a muzzle - this is not a time to be fearful of losing tax exemption when we could lose a whole lot more than that......
A small or medium sized church does not have the financial resources to defend itself and courts are reluctant to order fees against the liberal organizations even if the claims are frivolous.
Simple solution. Pay taxes like every one else.
You obviously haven’t thought deeply about the first amendment.
It’s pretty hard to require anything of an organization that you’re not allowed to limit in any capacity at all. It’s similar to saying that you can take my pistols but you can’t take my rifles. Not infringing Keep and Bear Arms means you can’t take either. NO law...prohibiting free exercise...means no laws about taking worship money just as much as it means no laws requiring worship only on Tuesdays after 7 pm.
The Simple, and constitutional, solution is to end these first amendment speech restraints on churches.
Aren't you the one who said there is no slippery slope when it comes to Gay Marriage, and then the next day I showed you an article where some democrat legislator stated that since marriage is a fundamental right, that polygamy cannot be made illegal?
If proposition 8 is passed, then the churches who oppose gay marriage could lose their tax exempt status. And like Canada, preachers who oublicly oppose homosexuality will be subject to arrest for violation of "hate speech" laws.
And don't try and say that won't happen because the first amendment protects "hate speech". Our first amendment rights hang in the balance of the opinions of the Supreme Court and a surpreme court that can overturn the will of the people by willy nilly declaring rights to exist, can just as easily, by judicial fiat, overturn the rights that now exist.
Is this the America you envision for yourself?
Are you Gay?
Agreed.
Proposition 8 is not just about same-sex marriage; it’s about setting up a blockade against the encroachments of the gay lobby upon religious freedom, first amendment rights, adoption policy, and curriculum standards. Americans are libertarian enough to allow gays the privacy of their bedrooms and hospital visitation rights, but the same-sex lobby is pressing for nothing short of their version of thought crime. Any American, employer or not, pastor or not, religious or not, should be able to say “I believe homosexuality represents a moral breech, and I reserve the right not to associate with someone who fails to see it as a breech of good conduct.”
Fully agree with you. It is thought control of the highest order, or at least speech control of “improper thoughts”. What’s worse, they demand the right to teach our children the “proper” way to think of homosexuality. It is an insidious campaign to make themselves “normal” in the eyes of society.
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