More Q&A about the Respect for Marriage Act

By: Thomas C. Berg

James L. Oberstar Professor of Law and Public Policy

University of St. Thomas (Minnesota)

Question 1: Does the Respect for Marriage Act allow the IRS to revoke the tax-exempt status of a church that will not perform or host a same-sex marriage? If so, what specific section of the bill allows this?

Answer: No, it emphatically does not. Section 7(a) says that nothing in the bill “shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person,” including “tax-exempt status” among a list of things. The bill is clear that it gives the IRS no authority to revoke the tax-exempt status of religious organizations—not just churches, but any religious organization.

Question 2: Does the Respect for Marriage Act prevent the IRS from revoking the tax-exempt status of a church that will not perform or host a same-sex marriage? If so, what specific section of the bill prevents this?

Answer: The bill sets a real hurdle to such a revocation of tax-exempt status. The IRS needs statutory authority in order to do it. Congress in this bill, in the same breath in which it protects same-sex marriages, declares that doing so does not justify revoking opponents’ exempt status. The IRS will find it very hard to get over that hump and claim authority to revoke.

Question 3: Do the provisions in this bill change anything about the IRS’s current ability to revoke the tax-exempt status of churches?

Answer: In a general way, the provisions will reduce any claim to authority for the IRS. The asserted precedent for such revocation—the Bob Jones University case, which allowed revocation of exemptions of racially discriminatory schools—rested on the ground that racial discrimination was “so at odds with the common community conscience as to undermine” any public benefit a tax-exempt school could provide. But in RMA section 2(2), Congress specifically states that beliefs concerning gender in marriage (which include the traditional man-woman view) are “held by reasonable and sincere people based on decent and honorable philosophical premises” and thus “are due proper respect.” This finding by the nation’s elected representatives will pointedly contrast with condemnation of racist views and will undermine the analogy to Bob Jones. 

This is important. The equation (by some progressives) of traditional-marriage views with racist views has been a key source of threats to traditionalists’ religious liberty. RMA puts Congress (including scores of Democrats) on record rejecting the equation.

Question 4: Would this bill force religiously affiliated adoption centers and foster care providers to “close down”? If so, which section of the bill allows this? 

Answer: No, it would not. The claim rests on the assertion that an adoption or foster-care agency receiving funds from the state is acting “under color of state law” and therefore can be sued under section 4 of the bill. But the Supreme Court has been clear that a privately operated organization does not act “under color of state law” or as a “state actor” just because it receives state funding (even for the overwhelming majority of its income) or is heavily state regulated. There is little or no prospect that the Supreme Court will change that position and expand the definition of “under color.”

See part B-1 of this letter that I and other scholars sent to senators with analysis of the bill.

Question 5: Is the status of religiously affiliated adoption centers and foster care providers changed by this bill?

Answer: No; see above. Any suits against adoption/foster agencies can and did happen before this bill, because of nondiscrimination laws combined with the Obergefell marriage-equality decision. This bill doesn’t increase those suits. 

Question 6: Does this law protect for-profit business owners from discrimination lawsuits if they refuse to provide services to a same-sex wedding? If so, which part of the bill does this?

Answer: No. This bill is silent on for-profit businesses. It doesn’t address every religious-liberty issue (nor does it address every nondiscrimination claim by same-sex couples). 

Question 7: If not, does this law make these businesses more vulnerable to lawsuits or otherwise change the status of these businesses under the law? If so, which part of the bill does this?

Answer: No, it does not make them more vulnerable. It just does not address the issue. The claim (below) that small businesses “would be able to be sued under this law” rests on the same false idea as above: that these private businesses could somehow be acting “under color of law.” They are not, under solid Supreme Court precedent.

Question 8: Is there anything else important for me to understand about these claims or this law that hasn’t already been addressed here?

Answer: The great benefit of this law is that it will exemplify that we can protect both same-sex marriage rights and religious liberty—indeed, as a practical matter in our divided times, we must protect one as we protect the other. The refusal by activists on both sides to seek balanced solutions has blocked the passage of LGBTQ nondiscrimination laws and harmed the appeal of religious liberty as a fundamental right. This bill helpfully shows that it’s possible to overcome the impasse, even in a small way; thus, it could encourage future, broader efforts.      

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