Religious schools and universities that have barriers against homosexuality may be under the gun after Friday's gay marriage ruling, given both oral arguments in April and the fine print of Justice Anthony Kennedy's decision last week.
The pivotal exchange during oral arguments occurred between Justice Samuel Alito and Soliciter Gen. Donald Verrilli on April 28:
Alito: "Well, in the Bob Jones case, 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?"
Verrilli: "You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue."
The reference was to the 1983 Supreme Court decision that held that Bob Jones University, a private religious school, could not keep its tax-exempt status if it maintained it ban on interracial dating. Alito's question was whether a sweeping Supreme Court decision was make
The exchange was widely noted at the time, particularly because it was the kind of question that normally provokes a noncommittal response designed to deflect opposition, not signal next steps.
"That answer is about as straightforward and committal as you’ll see from an experienced lawyer," wrote an exasperated Michael S. Greve, a law professor at George Mason University, on the Library of Law and Liberty blog. "It’s curious because the solicitor general had excellent reasons to deny the point and to deflect the question. ... And he had a million ways of making reassuring noises. It’s not some complicated legal case, for Pete’s sake: all Mr. Verrilli needed was to argle-bargle for the remaining five minutes of friendly colloquy about First Amendment values, competing dignities, the arc of history and the meaning of life. In short, Verrilli made the concession not because he had to; he volunteered it. Why?"
In his opinion last week, Kennedy signaled that that further challenges along the Bob Jones lines are welcome.
The First Amendment, Kennedy wrote, "ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered." However, he added, the Constitution "does not permit the state to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex."
Here, Kennedy brings the question of "state-action doctrine" into play, a long-standing rule that the equal protection clause of the 14th Amendment prevents states from discriminating on the basis of race, but not private individuals.
In the Bob Jones case, the granting of tax-exempt status was held to be "state action." Given Verilli's exchange with Alito and Kennedy's aside here, many experts now see challenges federal Pell Grants and tax exemptions benefiting schools that resist as inevitable.
"Many religious institutions simply could not afford to operate" without tax exemptions, R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary in Kentucky, told the Chronicle of Higher Education. "So it’s not just a question of tax exemptions, it’s a question of existence."