One of the less-than-honest scare tactics that the anti-equality Yes on 8 movement in California has used this has been to warn that places of worship might lose their tax-exempt status or be forced to perform same-sex wedding ceremonies if same-sex marriage remains legal in California.
1. The False Innuendo
For instance, a "coalition" of Yes on 8 supporters have put out a list of (mostly false and misleading) "consequences if Propostion 8 fails." One of these alleged "consequences" is that:
"Churches may be sued over their tax exempt status if they refuse to allow same-sex marriage ceremonies in their religious buildings open to the public. Ask whether your pastor, priest, minister, bishop, or rabbi is ready to perform such marriages in your chapels and sanctuaries."
This claim just isn't true. It's a scare-tactic and a fundamental misunderstanding regarding the law of tax-exempt organizations. First off, as law professor Morris Thurston has explained, this statement is a misleading allusion to the New Jersey case in which a Methodist organization lost its property tax exemption for a pavilion for refusing to make its public pavilion available to all members of the public. This religious association's tax-exempt status as organization was never at issue, it was a property tax issue.
What these "persecuted" Christians should note is that the IRS wasn't forcing the Church to marry same-sex couples. Nor was it even forcing the Church to allow same-sex marriages on its property. It was just saying that the Church could choose to allow a same-sex marriage ceremony on its property and keep its property tax exemption, or it could choose not to allow a same-sex ceremony and lose its property tax exemption. The Church chose the latter and, as Thurston notes, the amount of property tax levied on this organization was $200. Hardly an amount to put this Church out of business.
2. Tax-Exempt Organizations and Discrimination
Secondly, this predicted "consequence" is an inaccurate representation of the law governing tax-exempt organizations. Law professor Nicolas Mirkay, in a law review article about sexual orientation discrimination by tax-exempt organizations [PDF] recounts the law with respect to this issue. Specifically, federal income tax law does not currently address discrimination by charitable organizations. Quoting Mirkay, as the law stands now:
"The only possible restraint on discrimination exists in the public policy doctrine enunciated by the US Supreme Court in Bob Jones University v. United States which granted the Treasury Department (and the IRS by delegation) the power to revoke the tax-exempt status of an organization whose purpose violates 'established public policy.'"
The IRS, as Mirkay notes, however, has only revoked the tax-exempt status of organizations who have engaged "in racial discrimination, advocated civil disobedience, or have involved themselves in illegal activity." The holding of Bob Jones, in fact, was pretty narrow. The Court explicitly stated that "racial discrimination in education violates a most fundamental national public policy." To suggest that this holding would absolutely require churches to perform same-sex marriages seems tenuous at best. Unlike racial discrimination in education, there is simply no similar "national public policy" that says it's wrong for churches not to perform ceremonies for same-sex couples.
And, when discussing churches, it must always be noted that churches and religious organizations are treated differently, specially that is, by the IRS. I won't go into all of the details but this special treatment includes not having to file an application for tax-exemption and not having to file certain annual returns that other tax-exempt organizations must file. What gives churches and religious organizations special protection- particularly when it comes to discrimination- is that, here in the US, we have that nifty First Amendment and its free exercise (of religion) clause. Requiring churches to perform religious ceremonies at the threat of losing tax-exempt status would, arguably, intrude on freedom of religious belief.
What this all means is that yes, as a society we value non-discrimination. But, we also value religious freedom even when that freedom entails discrimination. To outright state that churches would absolutely be required to perform same-sex marriages or risk losing their tax-exempt statuses is a gross oversimplification of the issue. And, it's just not accurate.
In fact, it's precisely this Loss-of-Religious-Freedom scare tactic that has necessitated special language regarding "religious freedom" in Illinois' pending civil unions bill: The Illinois Religious Freedom Protection and Civil Unions Act. In granting legal recognition to same-sex couples in Illinois, this proposed law states very clearly:
"Nothing in this Act shall be construed to interfere with or regulate religious practice of the many faiths in Illinois that grant the status, sacrament, and blessing of marriage under wholly separate religious rules, practices, or traditions of such faiths."
In light of the fear-mongering, this sort of language is obviously needed to ensure passage and approval of protections for same-sex couples. Personally, I do not believe that religious organizations should be forced to perform marriage ceremonies for same-sex couples if doing so goes against their religion. Frankly, I don't see why any gay person would even want to get married in such a place of worship. If explicitly writing this into laws is what it will take for marriage and civil unions laws to pass, then so be it.
3. On Religious Freedom
In light of all this fear about losing "our" religious freedom, let's stop and actually talk about religious freedom for a moment. See, what I've noticed with respect to the campaign to write discrimination into California's Constitution is the remarkable degree that religious leaders and organizations are involved in this political campaign. Considering the fact that we're debating laws regarding civil marriage (as opposed to religious marriage), we should all be asking why the input of clergy is even relevant to this secular debate.
I find it frightening that the major backers of Proposition 8 are, mostly, religious or religious-based organizations of the fundamentalist Christian (mostly) and Orthodox Jewish sects. Oddly, (and perhaps ironically) members of the Mormon Church of Latter Day Saints have contributed staggering amounts of money in favor of Prop 8. These religious folk want to codify their religious view of marriage into our shared, secular civil conception of marriage. They do this in spite of the fact that religious freedom and tolerance of diversity requires that marriage be divided into religious marriage and civil marriage. This division is a compromise. It allows for religious organizations to continue performing religious marriage in accordance with their particular religious beliefs without imposing same-sex marriage on them by forcing them to perform same-sex marriage ceremonies.
In their quest to completely ban same-sex (civil) marriages, however, these religious groups seek to impose their religious conceptions of what marriage is on all of us, even those of us who do not share their religious views. That certainly doesn't make the rest of us very free now, does it?
As a relevant aside, I'd like to express thanks to Box Turtle Bulletin for compiling the list of newspapers that oppose Prop 8. It is definitely worth noting that most major newspapers (including smaller ones in conservative counties) oppose the discriminatory religiously-motivated Prop 8.