Everything Old Is New Again: Targeting Pro-Revolutionary Advocacy in 1952, Opposition to Gay Marriage in 2019

Beto O'Rourke channels the past.

|The Volokh Conspiracy |

In 1952, voters amended the California Constitution to deny tax exemptions to people who "advocate[] the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocates the support of a foreign government against the United States in the event of hostilities."

But, said the Supreme Court, in an opinion (Speiser v. Randall) by Justice Brennan:

[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech…. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.

The [government is] plainly mistaken in [its] argument that, because a tax exemption is a "privilege" or "bounty," its denial may not infringe speech…. [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is "frankly aimed at the suppression of dangerous ideas."

The Court ultimately concluded that, even if tax exemptions were denied only for speech that already falls within a First Amendment exception and could thus be criminally punished (as, for instance, intentional incitement to imminent and likely violence would be unprotected today), the government had to bear the burden of proving that the speech is indeed constitutionally unprotected. But the Court made clear that viewpoint-based tax exemptions for constitutionally protected speech are unconstitutional.

Now, in 2019, Beto O'Rourke has publicly endorsed the view that "religious institutions, like colleges, churches, charities, should lose their tax-exempt status if they oppose same-sex marriage."

I should note that it would probably be constitutional to deny organizations tax-exempt status if they discriminate in tangible benefits—such as university admissions or access to services—against gays or lesbians, see Christian Legal Society v. Martinez and Bob Jones Univ. v. United States, or against people in same-sex marriages. (Whether that is a good idea, and how people who belong to traditionalist religious groups should view O'Rourke based on this, is a separate matter.)

But the question to which O'Rourke answered "yes" was specifically about groups, including churches, opposing same-sex marriage, and not just discriminating in hiring, admission, or charitable services against gays and lesbians. (Press coverage reflects that, see, e.g., "O'Rourke: Religious institutions should lose tax-exempt status if they oppose same-sex marriage," The Hill [Julia Manchester].)

NEXT: Manchester Teen Faces Sex Offender Status for Touching 17-Year-Old on the Arm, Waist

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Speiser seems well thought out, and to establish a good principle. But if it is still good law, then how is it possible that the tax code now denies certain credits to participants in the BDS movement (26 USC 908)? Is “boycott Israel” not protected speech?

    1. “I should note that it would probably be constitutional to deny organizations tax-exempt status if they discriminate in tangible benefits—such as university admissions or access to services—against gays or lesbians”

      “Boycott Israel” is protected speech. Actually boycotting Israel is not.

      1. Yes, I think jph12’s view is right, see this post and this one. Advocating boycotts of Israel, or opposition to same-sex marriage is constitutionally protected speech. Actually refusing to do business with Israel, or with couples who are in same-sex marriage is generally constitutionally unprotected conduct (with some exceptions, at least when it comes to outright prohibitions rather than just denail of tax exemptions, that I discuss in Part II of this post).

  2. Add this to the pile of evidence that we can show folks who wonder why people on the Right have been sticking by Trump. Trump’s most potent use of the executive power has just been to do nothing, i.e., keeping the status quo.

    1. Open wider, mad_kalak. The liberal-libertarian mainstream has plenty more progress to effect against the wishes and works of conservatives, and your reliance on the charms, insights, and integrity of Donald J. Trump won’t help you in the long run. Or even the medium term. Indeed, the Trump era may expedite conservative losses in the culture war.

      1. You’re more correct than you know, I will admit. Trump is just temporary some top cover. Real change has to be made at the cultural level to keep people like you from the levers of power. But that said, that Trump doesn’t cave, and that he’s there doing what he’s doing, means he’s lighting a candle rather than cursing the darkness.

        1. How horrible it must be for you to observe gays being treated decently, government-conducted prayer removed from classrooms, contraception available to unmarried women, black men not required to lower their gaze in the company of good white women, creationism excluded from science classes, eight-year-olds receiving school lunches, environmental protections enforced, women welcome at graduate schools, drug warriors increasingly leashed, disadvantaged students receiving school loans, police abuses diminished, and voter suppression diminished.

          The culture war has been rewarding the liberal-libertarian mainstream throughout our lives. America’s electorate is becoming less rural, more diverse, less religious, more tolerant, less backward.

          Lashing together an electoral coalition for bigotry and backwardness is going to continue to get tougher (outside the depleted backwaters).

          1. Yea, you’re framing of the issue is asinine staw-manning like usual, including how you’re bringing in 50 year old issues (contraception, really? We are trying to make it OTC). And usually I just ignore your yammering, but like a blind squirrel finding a nut, you’re correct that culture (ultimately) matters more than political power. Politicians and courts reflect, and cannot transcend, the culture they are born and raised in, call it “pipeline theory” if you will.

            That said, don’t be so sure of yourself. All it takes is for the immigration spigot to be tightened up a half-turn and your proggie wet dreams won’t come to fruition.

            1. I would substitute the more currently relevant statist womb management for old-timey contraception bans if you prefer. Doesn’t help your side, though.

              Do you contend inhibiting immigration would make America more bigoted, more rural, more religious, more white, or more backward, and therefore more hospitable to Republican Party candidates and positions?

              1. By womb management, you mean murdering babies, but I’m actually okay with it as a policy, because based on statistics of who gets abortions, that’s one less future democrat voter.

                I contend that Hispanics, Asians, and Africans vote more often than not for Democrats, who are actually the more bigoted and discriminatory party of the major parties, my graveyard humor aside.

                1. If you have information concerning a murder, a competent person would alert the relevant law enforcement authority without delay.

                  If you have no such information, you should stop spouting superstitious nonsense and leave the debate on public affairs to reasoning adults.

                  In any event . . . open wider.

                  1. Your line about notifying the authorities is unintentionally humorous, because many of the authorities want it. Quis custodiet ipsos custodes? But that’s okay, like I said, one more dead liberal is worth it.

                    Nice of you to further cement the reputation of you and your proggie friends as bigots. Keep going, please, I’m having a good chuckle at your expense if nothing else.

                    1. Anyway, have a good weekend doing whatever it is you do. I give you the last word.

                2. You are very bad at being pro life.

                  Only statistically GOP lives are sacred?

                  1. All Lives Matter
                    But today that is absurdly considered racist
                    It’s not stay real

  3. What about a church, synagogue, or mosque that refuses to perform a same sex marriage?

    1. Since the performance of a same-sex marriage is purely speech (and symbolic expression), I think denying tax exemptions to institutions that refuse to engage in such speech and symbolic expression is itself impermissible viewpoint discrimination. (See here for a related analysis.) Denying tax exemptions to institutions that, say, refuse to allow same-sex couples in housing they provide, is not viewpoint discrimination, since it turns on refusal to engage in conduct (denial of access to real estate) and not on refusal to engage in speech and symbolic expression.

      1. Thank you for linking to your analysis. I fully appreciate the issue you faced in finding a rabbi to perform your wedding. My wife was also not Jewish by birth. Now, she is a better Jew than I am.

      2. “Since the performance of a same-sex marriage is purely speech (and symbolic expression), I think denying tax exemptions to institutions that refuse to engage in such speech and symbolic expression is itself impermissible viewpoint discrimination.”

        Since the performance of a boycott of Israel is purely speech (and symbolic expression), I think denying to award a contract to institutions that engage in such speech and symbolic expression is itself impermissible viewpoint discrimination.

        I don’t see any differences.

        1. Performance of the boycott isn’t purely speech and symbolic expression. Inserting words and ignoring the fact that it is more than just symbolism doesn’t make your assertion true.

          A proper comparison would be “Since the advocating of a boycott….”

          Actually performing a boycott and refusing to award a contract based on either boycotting, or refusing to boycott is viewpoint discrimination.

          You’re welcome to continue to be obtuse in your view that one is a symbolic ceremony (because you don’t need a religious institution to get married) while the other is an action that isn’t a symbolic ceremony, expression, or speech.

          1. This is right, and the applicable analog wouldn’t be to a marriage ceremony, but the issuance of a marriage certificate by the minister.

            If only ordained ministers were able to issue marriage certificates then they’d be obliged to sign their name and issue the certificate, but not to perform any particular ritual, even if they would normally perform such a ritual in other circumstances.

            What’s required is the action (signing), not the speech (“I now pronounce you wife and wife”).

            This would have been the outcome in the Colorado baker case (based on my reading of the opinions) – he’d have had to make a generic cake (maybe not decorate it though, but that’s trickier), but since Colorado thought it could get away with being a facial bigot their bigotry overrode what they might have otherwise been able to do.

        2. Perhaps the difference is that a religious marriage is just that — a religious marriage. A civil marriage is a different matter (ask Kim what’s-her-name).

        3. “Since the performance of a same-sex marriage is purely speech…”

          Isn’t university admission, and educational services in general, also purely speech?

      3. My parents had a real problem. My dad was born a Kohen and my mother was divorced. Scandalous!

      4. But you’re okay with forcing a baker to design and create a custom expressive work.

        Weird.

      5. Does that mean a justice of the peace can refuse to perform same sex marriages? Performing a marriage is not just speech, it is an action with legal consequences, which certain persons (actually, lots of persons) are authorized by the state to perform.

    2. An old strawman that conservative have been trotting out since the 90s.

      1. “An old strawman that conservative have been trotting out since the 90s.”

        That ole strawman that Robert here just confirmed to applause from a Democratic audience.

      2. Well, I’ve been thinking about that argument since the mid 80s.

        1. And in the three-to-four decades, you never noticed that no one has successfully sued a church for the right to get married in one?

          Think harder.

  4. What else is new? Projection is a fundamental trait of the Prog. They have always been the most violent, the greatest bullies, the biggest racists/sexists, the most dogged opponents of fundamental liberties like speech. I can go on and on. The poor oppressed leftist of the 50s only preached the values they did until they got into power and became far worse than their opponents. That should have been obvious even back then with the Communists.

    1. Project much?

  5. Conservatives love to play ‘heads we win, tails you lose’ (‘we can discriminate against others, but no one can discriminate against us, plus we get to avoid generally applicable laws’) but I doubt the liberal-libertarian mainstream is going to play along much longer.

    1. Aka “Oh no! Conservatives are weaponizing our ideas against us.!”

      This is your world, with your weapons.

      1. In my world, my preferences are prevailing. They have been for 50, 60, 70 years. Conservatives have lost their traditional perks and are painted into a diminishing corner, clinging to special, undeserved privileges to try to avoid generally applicable standards.

        1. “In my world, my preferences are prevailing….”

          In my world, the Warren and Brennan courts interpreted the 1st amendment to provide religious exemptions from generally applicable laws. Scalia and the conservatives overturned those rulings. In response, a Democratically controlled Congress and President passed the RFRA. Then a Democratically controlled Congress and President passed Obamacare, and chose not to exempt it from the RFRA. Then when Hobby Lobby chose to avail itself of those laws, folks like Arthur whining about conservatives.

          1. My preferences are education over ignorance, reason over superstition, tolerance over bigotry, progress over backwardness, freedom over authoritarianism, inclusivity over insularity, strong universities over shambling conservative-operated schools, modern communities over desolate backwaters.

            My preferences are prevailing, thanks to progress shaped against the preferences of conservatives.

          2. The ACA had a good deal of religious exemptions. However no amount of exemption is ever enough for religious conservatives. The filling out of a single one-page form was unacceptable hardship.

  6. I believe that one of the goals of the government in BOB JONES was the creation of a policy that any government official would have the power to deny a government service to an entity that was violating in important government policy. IIRC, the Supreme Court stepped around that argument by holding that the taxpayer’s discriminatory policy prohibiting interracial dating by students prevented the taxpayer from qualifying as an entity capable of receiving “charitable contributions” under 26 Code Sec. 170(c)(2)(B). Since the language of Sec. 170(c)(2) was deemed to have the exact same meaning as Sec. 501(c), then it followed that the taxpayer could not be tax exempt under Sec. 501(c).

    1. If I remember my law school lectures on the topic correctly (and that was back in 1982), the government was hoping that the Supreme Court would support a policy whereby any government official could legally deny services or government benefits to an entity that was violating an important public policy. So not only would Bob Jones University be unable to qualify for tax exempt status under Sec. 501(c), any state where it operates could refuse to allow it to exist as a corporation or prevent it from owning real property by not allowing it to be listed on a deed.

  7. Given that folks who “oppose” same-sex marriage have a long history of said “opposition” being done in material ways, I’m not sure it’s out-of-line to assume that’s what he had in mind.

    But sure, if he actually meant stripping tax-exemptions for all-bark-no-bite statements, then he’s obviously in the wrong.

    But it’s already established that the gov can cut off grants to a university if it bans interracial dating, so unless you want to re-argue that, I’m not sure that’d be out of line.

  8. I’ve seen a lot of comments on Twitter, that take Beto one step farther and call for no more tax exemptions for ANY churches.

    Question for the legal folks:

    Can the government not give tax-exempt status to churches and other religious organizations, but still give that status to secular non-profits? Or is that viewpoint discrimination.?

    1. It would seem reasonable for government to provide tax exemption to genuine charitable activity but to refrain from subsidizing the entertainment, child care, socializing, and similar activities of organizations.

      On one side, providing food to the poor and shelter to the needy. On the other, conducting concerts and bingo games.

      Bruce Springsteen and his fans pay taxes; why should religious bands and concert-goers be treated differently?

      We could discuss faith healers and $20 million jets for televangelists at another time.

      1. Sounds like art galleries, museums, and other cultural institutions would be hit pretty hard under the Reverend’s plan.

        Always thought he was a bit of an anti-intellectual.

        1. Should the tuxedo-and-ball-gown fans at symphony and opera performances be subsidized while Bruce Springsteen’s (larger) crowds pay full freight?

          Should a performance of the house band at a church be tax-exempt while the Rolling Stones’ performances are not?

          1. Is Springsteen’s concert tour paying full freight? He played a lot of arenas and stadiums subsidized with tax-payer money.

            1. Should a performance of the house band at a church be tax-exempt while the Rolling Stones’ performances are not?

              Pretty sure the house band members have to pay income tax, just like Mick Jagger.

              1. The promoters are treated differently. Why?

                Is a guitarist who claims to be clergy (‘power chords and lame ballads for Jesus’) taxed as another guitarist is taxed? I do not know, but I have sensed that clergy receive special tax advantages.

                1. That’s some fantasy world your’e living in Rev, if you think by proclaiming that you are clergy that you don’t have to pay taxes.

                  Why doesn’t Trump try something like that?

                  In fact, since you are a man of the cloth, why don’t you enlighten us? Do you pay income tax on wages derived from your non-ministerial duties?

                  1. Would anyone who has earned a college degree (from a reputable, reality-based, liberal-libertarian institution) be surprised to learn that Donald Trump claimed the tax benefits of the parsonage allowance?

            2. Mr. Springsteen paid full freight to rent venues, at least when I was familiar with his conduct.

    2. Shooting from the hip, the government could tax away the “de facto” assumption that churches are meet the normal criteria for non-profit status, and must meet those criteria on their own merits.

      What it probably could not do is say that regardless of merits, being religious disqualifies them from otherwise meeting the requirements for non-profit status.

  9. No mention of mosques by Robert. Ummm

    1. To be fair, the reference to “churches” was in the question, to which O’Rourke replied “yes.” O’Rourke’s follow-up statements were about any “institution” and “organization,” not limited to churches.

  10. ‘Now, in 2019, Beto O’Rourke has publicly endorsed the view that “religious institutions, like colleges, churches, charities, should lose their tax-exempt status if they oppose same-sex marriage.”‘

    All that Beta O’Rourke needs to do is issue a “clarification” that all he meant was that religious institutions should be free to advocate whatever policies they wanted, so long as they pursued “LGBT friendly” policies – such as allowing employees to get officially gay-married and still keep their jobs, extending married-student housing in their colleges to include gay-married students, to make cakes for gay weddings, etc.

    But they’ll be free to complain on their blog about being required to do such things. It’s in the First Amendment!

  11. I recently read this book about the French Revolution (or, rather, about what the new authorities did when they encountered opposition to their religious reforms). One of those reforms involved forcing all priests to swear an oath of loyalty to the new government. Those who refused were executed (as were their supporters).

  12. The problem is that liberals sincerely believe that opposing anal-sex based marriage is evil and illegitimate, and thus that force is legitimate to suppress that opposition. If liberals use force to suppress us, we’re justified, morally and legally, in using force against liberals.

    1. You keep forgetting about the lesbians. Or are they okay in your book since they aren’t really in to the whole anal-sex thing?

      1. He also forgets that legal marriage doesn’t require consummation (that is, sex) at all.

        Modern legal marriages aren’t vagina-based, anal-based, oral-based, hand-based or anything like that.

  13. President Trump is our last bulwark against these Democrat fascists.

    1. Last, as in final. The clinger collapse may be surprisingly swift and comprehensive after Trump leaves office.

      1. I don’t think the mental health of libs will survive Trump’s reelection, so I’m not too worried about a bunch of deranged progs regaining political power.

  14. I think O’Rourke embarrassed himself here.

  15. So the government can’t ding a church or mosque for “opposing same-sex marriage” . . . but they can ding them for refusing to hire a gay married Imam or pastor who doesn’t even share their beliefs?

    Seems absurd.

    1. but they can ding them for refusing to hire a gay married Imam or pastor who doesn’t even share their beliefs?

      No. The ministerial exception protects the church or mosque in those situations.

  16. The CRA is unconstitutional because it creates special classes which violate 14A

    And let’s be real the CRA is race neutral but it is absolutely only enforced one way

    We need to repeal the CRA not add more special classes. Of course no one has the guts to do this whose last name is not Paul

    1. Exactly. The CRA is an anti-liberty abomination.

Please to post comments

Comments are closed.