Luke, Speaking only for myself, I would approach each case by asking how the law or regulation would have treated similar discrimination issues before gay people asked for equal access. My understanding of the New Jersey rule is that it would have prohibited the denial of access for marriages involving interracial couples, interfaith couples, or couples involving divorced individuals. Under those circumstances, I think the same rules should apply to same-sex couples. If, by contrast, the rule generally exempted the nonprofit from complying with nondiscrimination requirements, I would extend that exemption to discrimination on the basis of sexual-orientation.
As for the constitutional question, I could see the argument being made that some of these cases (though the pavilion case would not be a good candidate) should be treated more like Hosanna-Tabor than like Smith, and perhaps this will be the context that eventually leads the Court to add some more clarity to its distinction between those cases. I do not have confidence in my ability to predict where exactly the Court will end up on that. Wherever it ends up, I don't think religious defenses of sexual-orientation discrimination should prevail where religious defenses of other types of suspect discrimination would fail (with the previously discussed exception of situations where racial discrimination has been uniquely targeted). In terms of how concerned religious organizations or individuals who oppose same-sex marriage should be, I'll stick with my final response to Michael from earlier today. Best, Jim On Thu, Apr 30, 2015 at 3:18 PM, Luke Goodrich <lgoodr...@becketfund.org> wrote: > I have a question for Marty, Jim, and others who seem to be arguing that > denial of tax-exempt status, at least at the federal level, is an extremely > remote risk. What do you think of similar efforts at the state level? > > > > I'm thinking, for example, of how New Jersey denied tax-exempt status to a > Methodist pavilion that declined to host a civil union ceremony ( > http://www.nytimes.com/2007/09/18/nyregion/18grove.html?_r=0), and the > bill in California that would have stripped the Boy Scouts of their state > tax-exempt status due to their policy on gay scoutmasters ( > http://www.huffingtonpost.com/2013/05/30/boy-scouts-nonprofit-status_n_3362079.html). > That bill apparently passed the California Senate by a vote of 27-9, but > didn't have quite enough votes to get a two-thirds majority in the House. > > > > (1) Do you think we're likely to keep seeing these efforts (to deny tax > exempt status to organizations that discriminate against same-sex couples) > at the state level in the next decade or so? > > (2) Do you think these efforts are good policy? > > (3) Do you think organizations that would lose their tax exempt status due > to these efforts would likely prevail on a federal constitutional challenge? > > (4) Do you think it is unwarranted for religious organizations to be > concerned about these efforts? > > > > Thanks in advance for your thoughts. > > > > Luke Goodrich > > > > P.S. My apologies if this question is too late to the discussion; I only > get the religionlaw emails in a once-a-day digest. >
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