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The Bob Jones Rule

I’m no expert in dignity or liberty. Listening to yesterday’s arguments I frankly got confused over just where and how marriage enters into the Fourteenth Amendment and screams for resolution by the Supremes. Nationalize me, please, appears to be the new form of constitutional argument. And so now, apparently, my first son may very well be permitted to marry my second son or daughter or both, or whatever.

But I what I really love are appellate lawyers’ maneuvers, such as this:

Justice 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?

Solicitor General 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.

That answer is about as straightforward and committal as you’ll see from an experienced lawyer. It’s curious because the Solicitor General had excellent reasons to deny the point and to deflect the question. His task was to assuage worries about what the Court is being asked to do here and to script the justices’ forthcoming press release (formally known as “the opinion for the Court”): that’s not what this means. 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?

Because if the tax exemption jazz becomes “an issue,” it’s decided the minute gay marriage becomes the constitutional baseline. Because everyone knows that. Because the LBGT folks already have those complaints and briefs in their drawers, to be filed (almost “certainly”) on July 1.  And because DoJ and the IRS and OCR, in their last remaining eighteen months in office, are in a hurry to roll over to their constituencies and to hammer the hold-outs, in meticulous observance of the law. A hallmark of this administration. Or maybe they’ll hand out waivers.

I don’t deny that” says “dare me. It’s not going to hurt me in this case, and I’ll plant a flag for the next cases.” Mr. Verrilli could have coasted; instead, he waited for his opening to push further. A heck of a lawyer, at his considerable best.

Reader Discussion

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on April 29, 2015 at 11:32:01 am

Ah! The uses now made of what was once our legal system, that once determined obligations and their roles in maintaining our social order; now used to achieve a "desired" social order and to establish the relationships necessary for it.

Desires may prove more destructive in the quest for their satisfactions than the quest is capable of attainment.

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R Richard Schweitzer
on April 29, 2015 at 11:36:51 am

Haven't looked at Bob Jones in a while, but I surmise the IRS withheld tax-exempt status as part of a tool to implement Congressional policies against racial discrimination. In contrast, I'm not sure I could find a Congressional policy against discrimination based on sexual orientation. And Congress has pretty wide latitude in the granting of tax-exempt status.

So even if the Court holds that equal protection requires states not to discriminate in granting marriage licenses, it is far from clear that this would compel any new tax status for colleges that disapprove of same-sex marriage. And conversely, even if the Court rejected the Constitutional claim, it is unclear that the IRS could not adopt rules withholding tax-exempt status from such schools. In short, I'm not sure I see much of a relationship between the current court case and the granting of tax-exempt status.

(For what it's worth, I favor policy decoupling: Policies designed to promote education and policies designed to promote racial integration should generally be implemented separately. Under decoupling, the Bob Jones case might never arise: The college would knowingly get the benefits of being an educational institution, and forgo the benefits of promoting racial integration.

And for what it's worth, I'm not wild about tax-exempt status. Make everyone subject to the tax code, and then have Congress explicitly transfer wealth to the entities it favors. In the absence of tax-exempt status, there would be no Bob Jones case; instead, the college would have been reduced to arguing about its entitlement to some explicit transfers from the public coffers.)

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nobody.really
on April 29, 2015 at 13:25:44 pm

Nobody could really be more wrong here. The government's position in Bob Jones was that the IRS had no legal authority to deny the tax exemption--not under the statute, and all the less so because Congress had examined the issue 100 times and declined to change the rules. There was no congressional "policy"; and that was the problem. The administration insisted that it wanted to deny the exemption; it just needed, and begged for, a legal basis.

Quaint, huh? For his "we need a law" position, my buddy Chuck Cooper (who handled this stuff at DoJ) got vilified as a from-the-gutter racist. Can you imagine any of the current DoJ hacks standing up for the rule of law and, hence, "homophobia" and "animus"? And can you imagine anyone in Congress standing up and saying, WE should decide this?

Please.

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Image of Mike Greve
Mike Greve
on April 29, 2015 at 15:39:53 pm

Nobody could really be more wrong here.

Ok, I'll try harder!

The government’s position in Bob Jones was that the IRS had no legal authority to deny the tax exemption....

I'm no expert in federal litigation, but in a case called BOB JONES UNIVERSITY v. UNITED STATES, I must conclude that someone on behalf of the United States was opposing Bob Jones University.

There was no congressional “policy”; and that was the problem.

Eh.

In Green v. Connally, 330 F. Supp. 1150, aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971), the DC Dist. Ct. held that racially discriminatory private schools were not entitled to tax-exempt status. That court later ruled that racially segregated social clubs could receive tax exemptions under 501(c)(7) of the Code. See McGlotten v. Connally, 338 F. Supp. 448 (1972). Faced with these two rulings, Congress expressly overturned the relevant portion of McGlotten by enacting 501(i), thus conforming the policy with respect to social clubs to the prevailing policy with respect to private schools.

Are these facts sufficient to establish a congressional policy opposing tax exemptions for racially discriminatory schools? Admittedly, it's less than I might want, but it's not an obviously crazy conclusion either.

In any event, I know of no comparable facts establishing a congressional policy opposing giving tax exemptions for schools that oppose same-sex marriage. Thus, I'm not persuaded that Alito's scenario is comparable.

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nobody.really
on April 29, 2015 at 15:53:18 pm

But, wasn't Greve implying that there may be some in the *activist* community that already has their sights on such a policy. It would not surprise me to soon see that a court case would be initiated or sufficiently strong lobbying and media pressure would be brought to bear upon the Legislative Branch to enact just such a policy.

I, like you, would prefer that we be done with the whole damn business of *exemptions* (except mine, of course). It is, at root, nothing more than the granting of benefits to some at the expense of others (me, mostly).

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gabe
on April 29, 2015 at 21:06:30 pm

"I surmise the IRS withheld tax-exempt status as part of a tool to implement Congressional policies against racial discrimination"

A lot of organizations filed amicus briefs begging the court NOT to deny Bob Jones tax-exempt status, because that would be the court declaring that the religious beliefs of Bob Jones U. (which required segregation) were counter to state policy, and therefore wrong.

And, that would establish a terrible precedent.

Well, it did; and now we are here...

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Chavez
on April 29, 2015 at 22:02:32 pm

nobody is right, sort of: you'd think that in a case styled Bob Jones Univ. v. U.S. the parties are adverse. But, no. NEITHER side thought the IRS had the authority to deny the tax exemption. For that reason (among others) the NAACP sought to intervene. The Supremes dinged them and then appointed their own attorney (William Coleman--a truly great man) to present the argument that the government MIGHT have made. That's how Bob Jones entered the law reports. Just don't call it a "case."

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Mike Greve
on April 30, 2015 at 05:52:34 am

[…] In 1983 the U.S. Supreme Court ruled that Bob Jones University in South Carolina could be denied an otherwise applicable tax exemption because of its then policy of forbidding interracial dating among its students; since then, despite much speculation, there has not been widespread yanking of exemptions from other institutions over widely disfavored or execrated but otherwise not unlawful internal policies. Now an exchange between Justice Samuel Alito and Solicitor General Donald Verrilli, at Tuesday’s oral argument in the gay marriage cases, is raising some eyebrows. Verrilli’s comments, if seen as reflecting considered Obama administration policy, might be seen as leaving the door open to wider denial of exemptions. [Sarah Pulliam Bailey, Washington Post; Michael Greve, Library of Law and Liberty] […]

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Image of A new screen for religious-school tax exemption? | Internet Tax Lawyers
A new screen for religious-school tax exemption? | Internet Tax Lawyers
on April 30, 2015 at 10:57:21 am

Wow.

I've often felt (and occasionally spoken of) misgivings about the Bob Jones U. case. It's gratifying to know others shared my concerns.

But I had not known about these procedural irregularities. Greve, if you can document what you're saying, I'd encourage you to bolster the Wikipedia site on this case. This does put the decision in a new light.

nobody is right....

Whoa -- with that attitude, you're just letting relativism run rampant.

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nobody.really
on April 30, 2015 at 12:35:37 pm

" you’re just letting relativism run rampant." - Ha! Ain't that the truth and for one who it would appear is opposed to relativism.

BTW: Harkening back to *days of yesteryear* as the Lone Ranger used to say:

Considering Verrilli's inability (unwillingness?) to respond on the possible tax (and other) consequences of a decision providing constitutional foundation for SSM, are you feeling any tingling in that old "persecution complex" (PC) of which you were complaining a few days ago?

I suspect that there will be more *consequences* coming as well as a rekindled and re-energized PC in our future.

Then again, I blame Greve and his relativism for this - after all, nobody is right, right?

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gabe
on April 30, 2015 at 13:46:59 pm

Considering Verrilli’s inability (unwillingness?) to respond on the possible tax (and other) consequences of a decision providing constitutional foundation for SSM, are you feeling any tingling in that old “persecution complex” (PC) of which you were complaining a few days ago?

Well, arguably, the real trigger for a persecution complex was the Bob Jones decision itself. Yet the broader persecution never came.

That said -- and while I cringe to offer any encouragement to gabe's parade of boogiemen in the offings -- of all the cockamamie persecution theories I've read over the years, Greve makes a more compelling case than most.

But look on the bright side: What if Greve is right -- but in defending the right of religious schools to decline to recognize same-sex marriage yet retain the same tax status as similarly situated schools, we can finally reverse Bob Jones?

And while I'm at it, when the Powers That Be see that they cannot selectively deprive homophobic schools of tax subsidies, maybe they'll be inspired to eliminate the not-for-profit category altogether?

Hey, nobody can dream....

[A]fter all, nobody is right, right?

gabe, I'm shocked: Didn't your mother tell you that two rights don't make a wrong?

Wait, it's the other way 'round: "Didn't your father tell you that two rights don't make a wrong?"

(No, that's still not it. Maybe it's "Two rights don't make a U-turn; try two quick lefts instead?" Or "Two rights don't make for a good boxing strategy; you also have to jab with the left"? Or "Two rights don't make a balanced presidential ticket; get a moderate on there, too"? You know, it's coming to me, on the tip of my tongue....)

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nobody.really
on April 30, 2015 at 15:06:46 pm

Ha! - Luv'd it!

"“Two rights don’t make a U-turn..."

No, but if you were J. Edgar Hoover, THREE rights do make a left turn, and in fact did MAKE a left turn for him.

BTW: I noticed that you suggested Wikipedia in a comment above (and have previously done so). I had been told that Wiki is somewhat unreliable. Is this correct?

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gabe
on April 30, 2015 at 15:43:02 pm

Opening Pandora" Box.
Justice Kennedy ""I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't."
If 'LOVE' is the end all and be all legal foundation of marriage how l long will it take the Court to decide that Sue and Tom can both marry Joe? Or a lonely old widow can marry her beloved cat? Or mothers and fathers can marry their beloved children? The possibilities are endless.

After the Supreme Court sanctions same sex marriage as a right under the Constitution what is next on the LBGTxxxxxxxxxxxxxxx agenda? First same sex partners equipped with I-phones or other recording devices will request a priest , rabbi or minister to officiate their wedding and when they are refused will bring charges that they are being discriminated against, denied their "rights" and demand that religious should be stripped of their ability to perform legally recognized civil marriages. Already religious adoption agencies in Massachusetts and Illinois have lost their state licenses and funding for refusing to place babies with same-sex couples.

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E.Patrick Mosman
on April 30, 2015 at 16:06:05 pm

Yes, Wikipedia is somewhat unreliable. All sources are somewhat unreliable. It is unclear that Wikipedia is less reliable than many other secondary sources. I value Wikipedia not primarily for its articles, but for its list of citations and links to primary sources.

If Greve could cite to primary sources documenting the government's conflicted posture, the Court's role in selecting an advocate for the position that ultimately prevailed, etc., this would illuminate the case and the resulting holding. And with Wikipedia, Greve would face little obstacle in getting his insights published and widely disseminated.

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nobody.really
on April 30, 2015 at 17:13:37 pm

Nobody:

Thanks for the info on Wiki - appreciate it. I may try it for the links a quick reference to sources.

Now for another matter. re: Mr. Mosman's post above.

I was going to make a related comment on the effect of minimizing the justification for marriage, at least *state* sanctioned marriage, to love. One can certainly understand this as one may argue that the world does not suffer from of a surfeit of love and to the extent that such an emotional attachment may prove a powerful cohesive force in civil society, the *state* may have some interest in supporting it. Yet, is there not something also powerful in a "procreation based" sanctioning of marriage for which the state may be said to have a compelling interest in not only sanctioning but promoting? I'll not go all *Moynihan* on this, but it does seem that a coherent case can be made for state sanctioning of this pivotal element of family structure and support. Yes, I know that not all marriages are blessed with children; yet, it is a historically relevant and fairly effective standard that has served us well.
Over at Volokh, I had suggested that non-traditionalists content themselves with some other social arrangement (civil contracts, etc) and was roundly denounced as an "exterminator" and other ghastly terms by some commenters. Yet, I also proposed that the state, via legislation, assure that certain *tax* benefits, inheritance, etc be provided to non-traditionalists - still, I was to be consigned to the ash heap of history.
I think, however, that we stand to lose something if we fail to support, via state sanction, what is the essential building block (however imperfect it may be in practice) of the family structure.

What say you?

seeya and thx again for the Wiki info.

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gabe
on April 30, 2015 at 18:24:47 pm

Ok, here we go --

1. No: No court has held that the sole requirement of marriage is love. Indeed, I'm not aware of any court finding that love is even a requirement. Just remember these words: "What's love got to do with it?"

2. No: No court has compelled a member of the clergy to conduct a marriage in their clerical capacity. Remember all those times that divorced people have sued Catholic priests for refusing to perform a marriage for them? No, you don't -- because it's never happened. The fact that divorce is legal has not given anyone the right to compel the services of a priest. This recurring speculation falls into the Persecution Complex Syndrome category.

3. Most state marriage laws discriminate on the basis of a suspect category (gender) regarding a fundamental right (marriage). Under Equal Protection jurisprudence, the state must articulate at least a rational basis that the policy is narrowly tailored to achieve a compelling state interest.

What about the argument that marriage is all about procreation? Tell it to all those states that have explicit provisions in their marriage laws permitting people to marry their first cousins provided they cannot reproduce. See Ariz. Rev. Stat. § 25-101 (first cousins may marry if both are at least 65 or older, or one is over 65 and the judge receives “proof . . . that one of the cousins is unable to reproduce”); 750 Ill. Comp. Stat. Ann. 5/212(f) (first cousins may marry if both are 50 or older or if either presents proof of being “permanently and irreversibly sterile”); Ind. Code Ann. § 31-11-1-2 (first cousins may marry if both are at least 65 years old); Utah Code Ann. § 30-1-1(2) (first cousins may marry if both parties are 65 or older or, when both parties are 55 or older, if a judge finds that either party is unable to reproduce); Wis. Stat. § 765.03 (2014) (first cousins may marry if the female is 55 or older or “either party is permanently sterile”).

Face it, there's no rational basis for the distinction.

Face it, the policy is not narrowly tailored: Granting state recognition to same-sex couples would in no way diminish whatever incentives exist for male/female couples to get married. To the contrary: In the past, homosexuals could only get married if they married people to whom they were not sexually attracted, and tried to ignore their sexual attraction for others. If you value marriage as creating stable mutual aid pacts that provide a basis for a stable household, stable child-rearing, and yes, even stable procreation, it makes no sense to create incentive structures for people to get married that will be pulled apart by sexual drives. State recognition of same-sex marriage will make male/female marriage better by removing the risk that your spouse is actually just marrying you to get access to the institution of marriage.

I know of seven couples that have broken up because one member of the couple (ok, always the guy) later announced he was gay. Let gay guys marry gay guys -- and stop breaking young girl's hearts.

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nobody.really
on April 30, 2015 at 19:30:01 pm

Re nobody really says,
1: No. No court has held that the sole requirement of marriage is love."

Not yet but what exactly did Justice Kennedy mean with:
Justice Kennedy “”I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.”
Apparently his decision will be based on who loves whom is sufficient to throw out the long held definition of marriage.

2. No: No court has compelled a member of the clergy to conduct a marriage in their clerical capacity.
Once again not yet but once the Court rules there is a Constitutional right the First Amendment is nullified and all bets are off that efforts will made to strip clergies of having religious marriages recognized as civil marriages since they will not officiate for same-sex couples.

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Image of E.Patrick Mosman
E.Patrick Mosman
on April 30, 2015 at 23:30:21 pm

"Describe worrying," he went on.

"What!?"

"Pretend I'm someone who has never worried. I'm mystified. It don't get it. Tell me how to worry."

"Well...I guess the first step is to envision a sequence of events as they might play out in the future."

"But I do that all the time. And yet I don't worry."

"It is a sequence of events with a bad end."

"So, you're worried that a pink dragon will fly over … and fart nerve gas on us?"

* * *

“There’s no way to get from the point … where we are now, to one that includes pink nerve-gas-farting dragons, following any plausible action principle. Which is really just a technical term for there being a coherent story joining one moment to the next. If you simply throw action principles out the window, you’re granting the world the freedom to wander anywhere … to any outcome, without constraint. It becomes pretty meaningless. The mind...knows that there is an action principle that governs how the world evolves from one moment to the next—that restricts our world’s path to points that tell an internally consistent story. So it focuses its worrying on outcomes that are more plausible....”

Neal Stephenson, Anathem, Part 4

In Boy Scouts of America v. Dale, the Court held that the Boy Scouts -- A LONG WAY SHORT OF BEING A CHURCH -- could refuse the voluntary services -- A LONG WAY SHORT OF BEING A FULL-TIME EMPLOYEE -- of an gay assistant scoutmaster -- A LONG WAY SHORT OF A BEING A PRIEST. If even non-church organizations have this much discretion to refuse to associate themselves with homosexuals, what possible reason is there to think the Court would uphold the compulsion of a clergy member in the performance of a religious service?

Look, I know many people have a deep, personal need to feel persecuted. It gives their lives meaning to think they are part of a cataclysmic battle of good vs. evil. If you’re one of these people, please don’t let my equanimity ruin your anxiety.

But if you’re not in the grip of a persecution complex, all I can say is that I see no plausible chain of events to get us from where we are now to where the Court would authorize compelling priests to perform weddings for anyone. I can’t keep you from worrying about this, just as I can’t keep you from worrying about being attacked by pink, nerve-gas-farting dragons. But I consider those two events equally likely.

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nobody.really
on April 30, 2015 at 23:45:52 pm

In other news, far from being expelled from performing civil marriages, many clergy have pledged to get out of the civil marriage business in states that recognize same-sex marriage.

And hey, suits me fine. I don't believe in slavery any more than I believe in undue discrimination.

Moreover, it's always been odd that we had this civil function performed by a deputized religious party. Apparently this was not true when the original 13 colonies were settled. Given the kinds of comments we have here (and elsewhere) suggesting the sky would fall if we acknowledge that civil marriage can differ from religious marriage, perhaps having separate ceremonies would provide a civic benefit.

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nobody.really
on May 01, 2015 at 10:06:51 am

Nobody, methinks you have the Persecution Complex and are the one positing boogiemen. As for me, I never have asserted that clergy would be compelled to marry gays, etc. It ain't happening - although some sect will do so - but I do not see the Court *compelling* them to do so. (I say a sufficient amount of silly things on my own. I do not need more added by someone else).

"Moreover, it’s always been odd that we had this civil function performed by a deputized religious party. "

Could this be because *marriage" as traditionally viewed in the West is in a very real sense a Christian invention? - similar in some ways to the Christian "invention" of childhood. It ould therefore not be unexpected that a religious functionary would be involved. Also, once may recall that during the pre-colonial and early Republic, clergy (and even civil magistrates) were not readily available - consequently people married themselves. So I would not place such a great emphasis upon the particuklars of nuptial practices during this time.

As for *stable family* - you and I will differ on this, yes, but do not mistake difference for hostility which many are wont to do.

BTW: signing off for a while - Stinkin computer issues again and this loaner is pretty funky. I think it was bombarded with pink nerve gas!!!

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gabe
on May 01, 2015 at 11:52:00 am

NO NO NO! Honestly, it's *pointless* having a discussion with you.

If you had even bothered to read what I wrote, "pink nerve-gas-farting dragons" don't fart pink nerve gas. Rather, they are pink dragons that fart nerve gas -- the color of which is indeterminate!

Jesus, how much clearer can I be? Or rose-hued? Or whatever....

Oh, and don't pretend this was some innocent oversight on your part. This was just the latest step in your campaign of persecution! Well, I see what you're up to, and you're not gonna get away with it!

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nobody.really
on May 07, 2015 at 07:47:53 am

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Religious Nonprofits, Plan Now For Tax-Exemption Battles
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Image of Religious Nonprofits, Plan Now For Tax-Exemption Battles | Prisoner of Christ
Religious Nonprofits, Plan Now For Tax-Exemption Battles | Prisoner of Christ
on July 02, 2015 at 22:00:50 pm

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Religious colleges on edge over tax, Pell Grant status after gay marriage ruling
on July 31, 2015 at 00:01:02 am

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Image of Why the BSA Decision is Truly Cause for Concern | Meridian Magazine
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on August 03, 2015 at 16:13:54 pm

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