Gay Marriage And The Revenge, Again, Of Bob Jones

I’ve written here too many times to cite that the Supremes’ Bob Jones decision, and the way it was decided, would come back to haunt liberals. Bob Jones University, you will recall, had its tax exemption revoked because its policy against interracial dating was held to violate “public policy” as interpreted by the IRS. In fact, in my discussion of that case here (especially in UPDATE IV), in connection with the Court’s consideration of the Solomon Amendment, I noted that

according to several observers who were in the audience [at the Supreme Court argument] the arguments successfully pushed by liberals against Bob Jones University and Grove City College did in fact return today to bite them in the behind.

In concluding, I predicted (accurately, as it turned out) that

the Harvards, Yales, Stanfords, et. al. are going to, in their eyes, be subject to the heavy hand of federal intrusion in large part because of the arguments liberals made in subjugating renegade places like Bob Jones….

Now it appears that Bob Jones is becoming poised to bite again.

In an impressive column in the New York Times (HatTip to Eugene Volokh), “Will Same-Sex Marriage Collide With Religious Liberty?” Peter Steinfels reports on a conference of legal scholars, many of whom support gay marriage, who predict a serious and growing conflict between gay couples and religious institutions that will place a heavy burden on religious liberty. For example, one of the scholars, Marc Stern, a noted authority on church-state issues, said he firmly believes that legal recognition of same-sex marriage will make clashes with religious liberty “inevitable.”

He has in mind schools, health care centers, social service agencies, summer camps, homeless shelters, nursing homes, orphanages, retreat houses, community centers, athletic programs and private businesses or services that operate by religious standards, like kosher caterers and marriage counselors.

One example, which he did not anticipate when first undertaking his analysis, was the Boston Catholic Charities’ decision to withdraw from providing adoption services because the state license required placing children with gay married couples on the same basis as heterosexual married couples.

Chai R. Feldblum, a professor at Georgetown University Law Center and a proponent of same-sex marriage, agrees that permitting gay couples equal access to civil marriage will inevitably burden the religious liberty of those religiously opposed.

Steinfels then observed:

Needless to say, the legal arguments are intricate; that, after all, seems to be the definition of legal arguments. The lawyers are back and forth on whether continuing opposition to same-sex marriage, if it were recognized, might put a religiously affiliated institution at risk of losing its tax-exempt status, as Bob Jones University did for prohibiting interracial dating and marriage on the grounds that they were unbiblical.

“Might”? I don’t think there’s much doubt. I haven’t read the transcript of the oral argument in the Supreme Court over the Solomon Amendment, but in this post I pointed out that

An observer from the Harvard Crimson noted that Justice Breyer made a direct comparison to Bob Jones:

Breyer also said he was concerned that FAIR’s argument might allow some schools to receive federal funds while pursuing anti-gay or racist policies.

“To be clear,” Breyer said to Rosenkranz [attorney for the plaintiff], “you would also argue that schools that are angry at the military because they believe the military to be too favorable to gays have the same right…and also the same right of Bob Jones University because they disapprove of social mixing of the races?”

Steinfels notes that many civil rights laws and regulations provide exemptions for religious objections, but he also notes that civil rights advocates continue to oppose all these exemptions. As civil unions and perhaps gay marriage become more common, look for more and more clashes between civil rights and religious liberty.