Bob Jones Redux: The Question SG Verrilli Was Unwilling to Answer in Obergefell Now Needs to Be Answered

LGBTQ students sue Department of Education to require that federally-funded religious colleges "respect the sexual orientation, gender identity and gender expression of their students."

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Obergefell v. Hodges was decided about 6 years ago. During the oral argument, Justice Alito posed a critical question to Solicitor General Don Verrilli. He asked whether religious colleges that favor traditional marriage could lose their tax exempt status. Verrilli was unwilling, or perhaps unable, to answer the question. Bill Eskridge and Chris Riano write in their excellent new book that "the issue had never come up in his preparation for the argument." Here is the exchange.

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?

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. I don't deny that, Justice Alito. It is –it is going to be an issue.

Six years later, Alito's question is no longer "going to be an issue." It is "an issue."

This week, 30 LGBTQ students filed a class action complaint against the Department of Education in the District of Oregon. The plaintiffs allege:

The U.S. Department of Education is duty-bound by Title IX and the U.S. Constitution to protect sexual and gender minority students at taxpayer-funded colleges and universities, including private and religious educational institutions that receive federal funding. The religious exemption to Title IX, however, seemingly permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced….

Religious exemptions may be constitutionally permissible, or even compelled, when the government regulates private action, even where some amount of harm to members of the community is involved. However, when the government provides public funds to private actors, like the colleges and universities represented by Plaintiffs, the Constitution restrains the government from allowing such private actors to use those funds to harm disadvantaged people. This Constitutional principle remains true even when the private actors are operating according to sincerely held religious beliefs, and it remains true whether the people they are harming are racial or ethnic minorities, sexual or gender minorities or those who reflect multiple, intersecting identities.

The plaintiffs seek sweeping relief:

a. Prohibiting Defendants from granting further religious exemptions to Title IX as applied to sexual and gender minority students;

b. Rescinding all prior religious exemptions to Title IX as applied to sexual and gender minority students;

c. Mandating that Defendants treat Title IX complaints from sexual and gender minority students at all taxpayer-funded religious colleges in the same manner as complaints from sexual and gender minority students at taxpayer-funded nonreligious colleges.

d. Requiring the Department to ensure that all federally-funded educational institutions respect the sexual orientation, gender identity and gender expression of their students.

The effect of this suit would be comparable to withdrawing tax exempt status. How many of these institutions can afford to abjure all federal money? Perhaps BYU and Baylor. Maybe Liberty University. I doubt others could swing it. If this suit is successful, most religious colleges will have to comply, or close. Bob Jones, of course, is the first college listed in the complaint. But Notre Dame, quite conspicuously, is not mentioned. The Fighting Irish are not far behind. All schools with any codes governing sexual relations are at risk.

And make no mistake. We are not simply talking about traditional four-year colleges with religious missions. One of the plaintiffs attended the Fuller Theological Seminary. The complaint states that he "only attended for several days before the school expelled him for being gay and married to a man." If the Plaintiffs are successful, even theological seminaries would have to decline all federal funding–and perhaps state funding. Espinoza would be diluted. The government will fund religious schools, so long as they eschew traditional teachings on sexuality.

We are looking at a potential revolutionary change in how religious colleges function. Tax-exempt status is next. Barely six years after Obergefell, the courts will soon have to confront these issues. And, I fear, Justice Gorsuch's Bostock opinion has already settled the Title IX statutory issue. The Plaintiffs assert that the current exemptions violate substantive due process. As a formal matter, RFRA would not trump the 5th Amendment. Perhaps if the Court overrules Smith, there would be a direct conflict between the 5th Amendment and the Free Exercise Clause. The stakes of Fulton grow greater by the day.

For those curious, the case was assigned to Judge Ann Aiken. She was also the judge who presided over the Juliana class in the juvenile climate change litigation. Judge Aiken found there was a fundamental substantive due process right to a clean environment. This assignment is not auspicious for religious colleges.

Currently, the Acting Assistant Secretary for the Office of Civil Rights, U.S. Department of Education is Suzanne Goldberg, formerly a professor at Columbia Law School. She founded Columbia's Sexuality and Gender Law Clinic. I suspect she may be sympathetic to this claim. I worry about a "sue and settle." For example, the Department of Education would enter into a consent decree with the class, forcing the federal government to accept new responsibilities without going through the formal rulemaking process. And once that consent decree is in place, it will be very difficult for other groups to challenge the arrangements.

I expect religious colleges will try intervene. I have not researched this issue, but the class will likely argue that intervention is not appropriate. If intervention is denied, then "sue and settle" becomes even more likely. And Judge Aiekn would preside over those proceedings.

NEXT: Managing Supply Chain Political Blacklist Risk?

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  1. Always thought it was funny about how an analogy relying on *Bob Jones explicitly crazy racist policy* was seen as an ‘ah, gotcha’ moment by conservatives….

    It’s like ‘catching’ someone with Korematsu

    1. Queen, you do understand that if this policy is imposed, you will then have the problem of LBGTQZYZ students simply disappearing into the night, don’t you?

      That’s the other side of this — go into a mosque selling bacon and see what happens…

      1. Once again, Ed holds up the premise that his side is borderline murderous as key to his argument.

        Of course, we saw him calling for the open murder of abortion doctors the other day. His moral sense is as degraded as his intellectual sense. This is what doses of Trump (the political equivalent of swallowing bleach to kill germs inside you) does to people though.

        1. Please post a link to my advocating the murder of abortion providers (although I am hesitant to call them “doctors.”)

          And saying that the law going beyond social norms will result in illegal behavior is not advocating the latter. It’s reality.

          1. “But perhaps the solution here is to have police officers simply shoot (and kill) those doctors who are performing these abortions. They can claim “resisting arrest” or whatever, and they can hide behind sovereign immunity or whatnot.

            And as doctors aren’t stupid, after the first 10, 20, 100 are killed with total impunity — BLM won’t care about the death’s of White males — the rest will understand that they can either comply with the police mandate — or die.”

            https://reason.com/volokh/2021/03/29/the-court-punts-by-granting-cert-in-cameron-v-emw-womens-surgical-center/#comments

            Not surprised you don’t know what you said from one day to the next.

            1. May I ask why you neglected to include the first line:
              “I’m in a really sarcastic & cynical mood, and I emphasize that.”

              Did it ever occur to you that I was being sarcastic — particulatly after I SAID I WAS?!?

      2. The mosque-bacon threat isn’t quite as scary as you think it is. They’ll bust you up for making cartoons of Muhammed, but bacon-breath will only kill you the old slow way with or without any Muslims nearby.

        The disappearing gay Bob Jones students don’t bother me now, how much worse can that problem get?

    2. I support this claim. The slightest viewpoint discrimination should result in automatic rescinding of the tax exemption by the IRS Non-Profit Office. The slightest criticism of a conservative student in a school utterance should end the exemption, on the spot.

      1. You’re nuts.

        1. You are obviously not a lawyer. Have a blessed day.

        2. “You’re nuts.”

          He knows that.

          1. Hi, James. You are a lawyer. You believe minds can be read, those of people with no recall of an event, of those who are dead. Yet, you are unable to read the plain language of their writing. You believe rare events can be forecast. You believe standards of conduct should be set by a fictitious character.

            You scumbags have some nerve calling anyone, nuts. You are not only pure evil, you are totally in failure in every self stated goal of every law subject and damaging to the nation. Your profession needs to be crushed to save our country. Every social pathology, every man made catastrophe is 100% the fault of the dumbass lawyer.

            1. I don’t think your are nuts, but there is a distinction between discrimination on the basis of race, sex, sexual orientation and gender identity versus discrimination on the basis of viewpoint. You can support the former set without supporting the latter. Additionally, even if you support the latter, you might conclude “the slightest criticism” doesn’t constitute discrimination. And, you might also conclude such criticism is protected speech.

              1. Anti-discrimination laws violate the Ninth Amendment . If we must have, they should be used by both sides. What is I brought the DOJ household crime survey disparity in victimization by race? Could they expel me? How would you remedy such move?

                1. What “both sides” are you referring to.

                  I need more detail about your hypothetical. What did you do with the survey and why they expel you?

        3. Actually, on this one, he actually isn’t.

          IF there were to be a legal precedent that random people have standing to sue ED-OCR, then our problems with the Kangaroo Korts lynching male students are over because *we too* can then sue (in a state friendly to *our* issue) and likewise get an injunction.

          And we can sue on race, and we can sue on national origin (i.e. born here) and a bunch of other things and in the end OCR would be forced to end this woke foolishness in academia.

          OK, maybe he is nuts as ED-OCR has nothing to do with the IRS, but if this group has standing (or is granted it via a “sue & settle”) then it opens the door to all the aggrieved conservatives.

          1. ” lynching male students”

            Where ‘lynching’=’expelling from higher education’ (something most people in the US don’t have anyway).

            You’re a bit nuts too, aren’t you?

    3. The gotcha moment is that the Court was, directly and indirectly, going to impose social policies on the nation that it never voted for and the majority do not want.

      The notion that federal funding and even tax exempt status must be withheld from otherwise qualified institutions because they uphold the traditional view of human sexuality and marriage is absurd, but it will be imposed by the federal judiciary anyway.

      1. If the majority feels as strongly as you believe they do, Congress can amend Title IX to permit schools to discriminate on the basis of sexual orientation and gender identity without foregoing federal funding.

        1. Or repeal Title IX outright.
          It only was inserted as an attempt to kill the larger act, and Title IX has destroyed certain male sports such as wrestling and skiing.

      2. “The notion that federal funding and even tax exempt status must be withheld from otherwise qualified institutions because they uphold the traditional view of human sexuality and marriage is absurd”

        You have your choice, uphold the traditional view of human sexuality and marriage is absurd, or be tax-exempt. You make your choice and quit whining about it.

        1. When you are elected philosopher-king, then I will agree.

          In the meantime, the majority, as its will is expressed through Congress, rules. And the majority never agreed to the policy that will now be imposed by the judiciary.

        2. BTW, is “quit whining about it” now a legal doctrine?

          Can we apply it to other areas? One might easily have applied it to, for example, Obergefell. You can get married to someone of the opposite sex, or live with the disadvantages of legal singlehood, and “quit whining about it.”

      3. Bored: are you aware of the _Trinity Lutheran_ decision — and that was pre-ACB…

    4. “It’s like ‘catching’ someone with Korematsu…”

      Wait ’till you hear about affirmative action…

    5. It may seem funny to you, but it’s deadly serious to us.

      When taxpayers are made to fund the lion’s share of a large industry such as higher education, then the prospect of some participants in that industry being denied that funding because of their beliefs amounts to the same cartelization practice that the “Managing Supply Chain Political Blacklist Risk” thread is talking about. The principle is the same: government has no business causing or allowing any group to be driven completely out of a line of business for political dissent.

      Of course the simplest solution to this conundrum is simply to get the federal government out of the higher education business, which is not among Congress’s enumerated powers in the first place.

      But I also suggest giving communications industries the same exemption from taxation that religions get, and for the same reason: the power to tax them is the power to destroy freedom of speech.

      1. So you were highly upset about Trump’s anti-semitism executive order? Can you link to where you expressed your principled outrage on that?

  2. How would this affect the tax exempt organization that opposes transgender treatment on moral and ethical grounds which doesn’t want to encourage a barbaric practice with permanent long term irreparable damage to the individual

    1. This isn’t about tax exemptions, but instead the receipt of Federal funding, including student financial aid monies. This is the infamous ED-OCR that came out with the all-men-guilty mandate during the Obama administration — and that, too, was under Title IX.

      The bulk of the Federal funding is actually indirect — it is the student loans made to the STUDENTS who then use it to attend the college. The relevant law involves litigation (SCOTUS?) between either Hillsdale or Grove City and ED where the college would be subject to both ED and ED-OCR for receiving Federal funding if their students did, so both colleges don’t allow their students to do so.

      The question I have here is standing because while IANAL, I do know that there is no private right of action to enforce FERPA and I don’t believe there is one here, either.

      The only penalty ED-OCR has is termination of the ability to receive Federal funding so even if ED does a “sue & settle”, the religious colleges can still say FiretrUCK you and they have standing to sue. And wouldn’t _Trinity Lutheran_ trump Title IX?

      1. “The question I have here is standing because while IANAL, I do know that there is no private right of action to enforce FERPA and I don’t believe there is one here, either.”

        Presumably this view comes from the same brilliant legal mind that stated with authority that it is legal to shoot across roadways in Maine during hunting season as long as no vehicles are hit?

        1. “Presumably this view comes from the same brilliant legal mind that stated with authority that it is legal to shoot across roadways in Maine during hunting season as long as no vehicles are hit?

          It’s a pity that HTML doesn’t support a sarcasm tag — and that some don’t otherwise recognize it.

          I’m serious about the standing issue.

        2. The statement matches my research about 20 years ago when I was studying the law on implied rights of action under federal law. I remember meeting a student whose thesis was about how FERPA should be expanded to include a private right of action. As far as I know that never happened.

          1. _Gonzaga University v. Doe_, 536 U.S. 273 (2002)

            A lot of people at the time thought the kid got screwed.

  3. “If the Plaintiffs are successful, even theological seminaries would have to decline all federal funding–and perhaps state funding.”

    Good. If your* god commands you to hate others that’s between you and him. Keep my tax dollars out of it.

    *the rhetorical “you,” not Prof. Blackman.

    1. Remember, Trump supporters fell over themselves cheering when he issued an executive order extending the ban on educational institutions receiving federal dollars ones engaged in discrimination on the basis of (an expansive definition of) anti-Semitism. There’s no principle here, just ‘I don’t like teh gays.’

      1. Are you sure it is just “I don’t like teh gays.’ It seems reasonable to conclude there is plenty of White supremacy, misogyny, and xenophobia involved, too.

      2. Here’s principle for you: end all federal funding of higher education.

        1. Here’s another. End federal subsidies for fossile fuels. Oh wait, that one’s already happening.

    2. What tax dollars? If you’re a Democrat, you’re almost certainly in the 50% that pays no federal income taxes. And nope, the sales taxes you pay on your doobies and sail phones doesn’t count

      1. Lol, who could have predicted your comment would be easily verified as wrong.

        https://www.theguardian.com/us-news/2019/oct/24/us-elections-2020-richest-zip-codes-fundraising

        1. Who cares about fundraising? Look at the actual voter base.

          1. Yeah, those people I linked to gave gobs of money to but didn’t vote for Democrats. Sure.

    3. “Good. If your* god commands you to hate others that’s between you and him. Keep my tax dollars out of it.”

      Be careful what you ask for — the Higher Education Act (from which all the student aid largess comes from) *still* hasn’t been reauthorized and a MAGA Congress could simply repeal it in 2023. (Or just stop funding it — Biden couldn’t do anything about that.)

      Half of America already despises higher education, this would be the tipping point…

      1. “a MAGA Congress could simply repeal it in 2023.”

        Counting your chickens before they’ve voted, much?

        1. Remember 1994?!?

        2. I know, your side plans to legalize 10 million mestizos before then.

        3. It’s reasonable to expect Democrats will be punished in 2022: it’s traditional for the party in power to lose votes after taking the White House and Democrats are acting like they don’t care if there’s a backlash. It’s not reasonable to assume Republicans will be any more capable of coordinated action than when the time came to kill Obamacare.

          1. “It’s reasonable to expect Democrats will be punished in 2022: it’s traditional for the party in power to lose votes after taking the White House and Democrats are acting like they don’t care if there’s a backlash.”

            What more “backlash” and anger against Democrats could people inclined to vote Republican generate? With the huge surge in voter turnout in 2020, Trump got more votes than any previous President, just like he said. (Too bad the candidate he had to beat was Biden, who got 7 million more votes than that.)

            Republicans have been playing a weird game for decades now. They have, as a strategy, the plan to generate outrage amongst their base to drive turnout and work to take advantage of and strengthen the structural flaws in the U.S. system that advantages the current Republican coalition. (Equal representation for states in the Senate, EC, and that even districts not purposefully gerrymandered result in over-representing rural areas since urban areas naturally pack Democratic Party voters into fewer districts.) The problem with this strategy is that it depends on Republican base turnout to be high while Democratic base turnout being less.

            I don’t think that the GOP really cares that they are being called racist for the voting law changes, either. They might be counting on it, as it plays into white conservative victimhood narratives. But if it continues to motivate Black voters to turn out at higher rates, then that could just cancel out the desired effect.

            Bottom line: the GOP base has shown that it has maxed out its outrage already. If Jan. 6 wasn’t enough of a sign of what increasing that outrage will do, then Republican’s efforts to play that up even more is going to get even more people killed.

            1. I hope so. America needs change, and that change will never happen so long as Shaniqua gets a vote.

    4. “If your* god commands you to hate others that’s between you and him. Keep my tax dollars out of it.”

      How about if your* ideology commands you to promote ideas, like Marxism, that have imposed massive death and human suffering, that you do so without MY tax dollars.

      ____________
      * “your” is rhetorical

      1. MY ideology is that I want a government that works. If they have to crib ideas from Marx, fine, whatever, if they work.

      2. Speaking only about the religions I know enough to feel comfortable speaking about, there is precisely one modern religion that predates the 20th century that doesn’t meet your “without MY tax dollars” qualification. And there’s reason to believe that’s mostly because of persecution by the other religions, which have largely kept it from the reins of power for most of history, and not because it’s uniquely peaceful.

        So, uh, sure. I’m fine tax dollars not going to ideologies that command it’s listeners to promoted ideas that have historically led to massive death and human suffering.

        That you think this would be controversial says more about you then it does anyone you’re addressing.

  4. Would someone explain why more than 100,000 sexual and gender minority students would even want to attend “religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced…”?

    1. Could someone explain to me why so many blacks would want to stay at hotels where discrimination on the basis of race is company policy and openly practiced?

      1. One of these exist to uphold and teach particular religions, and their doctrine includes teachings that hold the practice of their sexual preferences or re-identification to be sinful.

        One of these exist to rent hotel rooms to people.

        Maybe someone brighter than you sees a distinction.

        1. Since it’s so obvious to me tell me this important distinction. Share the wealth (of knowledge).

          1. Religion is 10 times more effective at persuading people to act morally. It is an effective competitor to the lawyer profession in utter failure. You people are jealous. You are trying to take it down with that frivolous litigation for sex abuse.

            1. “Religion is 10 times more effective at persuading people to act morally.”

              Glad I wasn’t in the middle of big sip of coffee when I read that. It would be all over my monitor if I had been.

          2. Don’t be dense.

            A religious college or university by definition is promoting a particular viewpoint and ideology, and attending for four years is a major commitment by the student to being educated in a way that is at least colored by that ideology.

            Staying in a hotel involves no viewpoint or ideology. It is a much more limited committment, and all that can reasonably be expected of the person is to (a) pay the bill and (b) not trash the place. Something blacks are just as capable of doing as whites.

            1. The issue has to do, in both cases, with turning someone away, not with forcing a change in the viewpoints expressed.

              A major case in the Civil Rights movement involved a BBQ joint where a big Confederate flag was flown over it and the owner believed in a religious tenet that the races must not mix. SCOTUS said he could keep his beliefs and his flag but he could not turn people away based on race. This conversation started with ‘but why would any gay person want to go to a school that believed such things about gays.’ For the same reason some black persons wanted that BBQ is what I’m saying.

              1. “SCOTUS said he could keep his beliefs and his flag but he could not turn people away based on race.”

                But how about telling us WHY SCOTUS said that.

                Wasn’t it something about how not being able to get food precluded the ability to travel???

            2. That’s true, up to a point. But here’s what goes beyond that point:

              I don’t generally agree with Karl Marx but he was dead-on accurate when he said that religion was the opiate of the masses. Opium, of course, is a highly addictive drug that is very difficult to disentangle from once one has become addicted.

              A lot of gay people who grew up religious became addicted to religion, and it’s a tough addiction to let go. As with people in any other kind of abusive relationship, others look at it and wonder why they don’t just leave, but if you have a deep emotional or psychological entanglement, it’s not that easy.

              Maybe giving them economic incentives to leave isn’t such a bad idea. But make no mistake, the dynamic is exactly the same as that of a woman who keeps going back to the guy who comes home drunk and hits her every night.

              1. Religion does a good job of making people moral and immoral (look at history).

                1. Communism did a better job at the immoral part.

              2. Lots of religions accept the whole LGBTQIA+ spectrum. Having same-sex sex is only incompatible with certain religions, and it’s not the government’s place to tell those religions that their creed is wrong.

                1. “…it’s not the government’s place to tell those religions that their creed is wrong.”

                  It isn’t about their right to believe what they want. It is about whether an organization can get tax advantages or government subsidies while discriminating against groups of people. The subsidies and tax exemptions are given to educational institutions and nonprofits because the government (through elected representatives) had decided that those kinds of institutions were serving the public good. It is perfectly reasonable for the government to decide that certain actions taken by an institution harm the public enough that those institutions should be denied government support.

      2. “Could someone explain to me why so many blacks would want to stay at hotels where discrimination on the basis of race is company policy and openly practiced?”

        Are you really that stupid, or do you just pretend to be?

        The reason — and this is well documented — is that they are traveling from Point A to Point B and need a place to stay for the night. It was well documented that segregation made it difficult for Blacks to travel and that this was the justification for preventing it under the Congressional power to regulate interstate commerce, which includes interstate traveling.

        Now exactly how many LBGTQUVWXYZ people who want to learn how they are sinful and will burn in hell for all of eternity?

        1. “want to learn how they are sinful and will burn in hell for all of eternity?”

          That’s not all of what these colleges offer, as they themselves will quickly point out. Just as the hotel room of a hotel with a big Confederate flag flying might be sought out by a weary traveler, a college with an anti-gay stance might have the only affordable dental hygenist program the gay student can get into around.

          1. All the dental hygienist programs I am aware of are at community colleges. Which are also cheaper than private colleges, and are not liberal arts degrees, which the religious colleges offer.

            Read Newman’s _Idea of a University_ and you will understand my point.

            1. “All the dental hygienist programs I am aware of are at community colleges.”

              Pedant’s Progress.

      3. Could someone explain to me why so many Conservatives want to stay in a country that keeps rejecting their fervent wishes?

        1. Because we were here first. Let the Marxists go to Red China.

          1. If “we were here first” were the standard, time to give the country back to the Indians.

            1. They weren’t here first — they stole the land from other Indians.

              1. They were here before we were, though.

    2. They don’t want to attend them. They want to destroy them. The same way they ask bakers to bake them a cake celebrating same-sex marriage, not because they want cakes from those bakers, but because they want to drive those bakers out of business.

      1. Interesting logic… THEY take money to a business, and attempt to give the money to them, in an effort to drive them out of business.

        1. It is the same technique used to attack corporations. You buy one share at minimal cost to you and minimal benefit to the corporation. Now you are a shareholder with legally protected rights.

    3. Some possibilities:
      They started attending before they figured themselves out.
      It’s where they got scholarships.
      Their parents went there, so they can get in on a legacy admission, and it’s a better school then the ones they qualify for on merit.
      It’s the school their angry old aunt is willing to pay for.

      And so-on.

      That said, you kind of missed the point of the lawsuit: change or lose funding. These places losing federal funding, but continuing on with their bigotted ways, is 100% an acceptable solution.

      But like other bigotted Christian groups, it is not enough for the bigotted Christians in question to be free to be bigotted and Christian. They also want to be paid by the government to be bigotted and Christian.

  5. Why should theological seminaries receive federal funding? In fact, I was quite surprised to hear that they receive funding at present. Do any non-Christian religious schools receive federal funding?

      1. Last I heard, theological seminaries do *not* receive Federal aid, although their non-seminary students can. Betsy DeVos was attempting to change that though.

        1. Let me be clearer — a theological seminary student is one preparing to be a member of the clergy, i.e. minister, priest, or rabbi.

          A religious IHE (Institution of Higher Education) is something different — it incorporates its religious beliefs and teachings into its entire curriculum. A religious IHE may also have a seminary program, many do, but that’s a different story.

          Perhaps this issue — also likely to go to SCOTUS — is illustrative:
          https://newbostonpost.com/2021/03/07/gordon-college-doesnt-qualify-for-ministerial-exception-from-professors-sexual-orientation-lawsuit-massachusetts-high-court-says/

          She was a professor of social work — I believe they also have a theology program there.

    1. Why do any schools or students receive federal money or special tax rules?

      Abolish the Department of Education.
      Make student loans dischargeable in bankruptcy.

      Force schools to sell their product at a price their customers can afford or go out of business.

    2. Religion is 10 times more effective at persuading people to act morally. It is an effective competitor to the lawyer profession in utter failure. You people are jealous. You are trying to take it down with that frivolous litigation for sex abuse.

    3. The Oregon State University had a Department of Religious Studies into the 1980’s at which point the Department of Religious Studies was folded into the Department of Philosophy.

  6. Should we expect those who lost the fight to treat Black people like dirt to fight harder (or smarter) to maintain the ability to treat gay people like dirt?

    I just read that church membership and attendance are in free-fall in America. Could that point be related to the degree with which many religious organizations have doubled down on gay-bashing, misogyny, Donald Trump, and Donald Trump’s supporters?

    1. Telling a guy whose idea of “love” is shooting off in another man’s tuchis that he’s not right in the head does not qualify as “treating him like dirt.”

      1. Someone’s not right in the head around here.

        1. The sole purpose of life is reproduction. The rest is bullshit. Who is more impaired? A guy with intellectual disability in a wheelchair from cerebral palsy who flirts with girls and would love to have sex with them or Queenie?

          1. What a sad life you must live if you think that. Course, it might explain some things.

          2. “The sole purpose of life is reproduction.”

            Yours, maybe.

              1. What is the purpose of a nun or priest?

                Some of them seem to believe they have a purpose. Some others do, too.

                What about someone born sterile?

                This blog attracts more low-quality comments than one would expect from an academic blog associated with a number of strong educational institutions.

                1. The purpose of those people as far as their DNA is concerned is none. Also, DNA does really care if they are a dinosaur or a cockroach. Sorry. It has a chemically based impetus to reproduce. You and your life are its servants. You have witnessed rapid evolution in the form of COVID variants within months of vaccinations and immunity. Why a virus with complicated proteins in the form of spikes?

                  1. “The purpose of [everybody and everything] as far as their DNA is concerned is none.”
                    Fixed it for you.

                    If you have to anthropomorphize an unthinking entity to make your point, you’re talking religion/philosophy, rather then whatever you want people to think you’re talking.

              2. “Purpose of life” is a religious/philosophical concept, and has nothing to do with any medical or psychological determination of impairment.

      2. You sure do obsess a lot about gay butt sex.

        1. Again, if it’s such a great, healthy, normal, “loving” act, why do you people freak out when anyone describes it?

          1. No one cares what they do. People do not want to be bullied by these little tyrants. They do not want to explain to their 6 year old girls why an ugly bearded dude is in the Ladies Room. They do not want their Kindergarten students forced to accept the unacceptable, and what is disgusting to anyone normal.

            1. They do not want to explain to their 6 year old girls why an ugly bearded dude is in the Ladies Room.

              If people don’t want to explain “I supported a law that forces transmen to use the women’s restroom” to their kids, maybe they shouldn’t support such laws?

          2. I don’t freak out, but the point is that that’s *all* you talk about when it comes to gay people. It reminds me of a cartoon I saw once that showed several rabbits having a conversation, and one of them was saying, “It’s like being gay; people think all we do is have sex.” If you obsess about one thing, and one thing only, it’s fair to ask why.

            And I can think of a lot of perfectly normal, healthy things that are not described in detail in polite company. Hemorrhoid surgery, for example, or elimination of bodily waste (from either orifice).

            1. Ultimately, gay male relationships are about sex. Otherwise, what separates what they do as opposed to what two male friends do?

              1. If you don’t see any point to a romantic relationship then sex, that’s (A) on you, buddy, and (B) not something anyone should have any hope of fixing.

                You’re obsessed with gay dudes fucking. We get it. Just go watch porn like everyone else and get it out of your system.

              2. What about lesbian relationships? Or are women too unimportant to even matter to this conversation?

                People have sex both in and out of relationships, gay or straight. It’s not uncommon for people to be friends with people they used to have sex with. It’s not uncommon for people who have been married a long time to gradually lose interest in sex. It’s not uncommon to have friends with benefits. If you did a Venn diagram of sex and relationships, there would be some overlap, but there would also be a lot of area in each circle that did not overlap.

                Escher’s right; you’re obsessed with the idea of two guys fucking. Go watch some porn.

          3. Most people don’t freak out, you do.

    2. “I just read that church membership and attendance are in free-fall in America. Could that point be related to the degree with which many religious organizations have doubled down on gay-bashing”

      More likely the gay pride flag flying over the front door.

  7. Perhaps the solution here is to overrule, or modify Obergefell v. Hodges.

    1. Baker v. Nelson was clear precedent. Obergefell should have been thrown out at the lowest federal court level.

      1. By that logic Brown should have been thrown out at the lowest federal level.

        1. A panel of federal district court judges in Kansas threw out the Browns’ complaint.

          Better Americans revived it.

          Lesser Americans still dislike that sequence.

          1. And now we have terrible urban schools, as all whites fled, as they understandably don’t want their kids going to school with disruptive children of single “mothers” with 85 IQs.

            1. It doesn’t surprise me that a Trump booster would be anti-Brown (pun intended).

              1. It surprises no one that leftists prefer “Article III” Amendments to the Constitution. So much easier than the “Article V” kind.

                1. The 14th Amendment was not passed via ‘Article III.’

                  1. No, but those who ratified it believed in segregation.

                    1. They also didn’t believe it prohibited programs to specifically aid black persons, so there’s that too.

                    2. An excellent argument against originalism.

                    3. As Krychek_2 says, a lot of the best arguments against Originalism are to take seriously what people living at the time thought should happen. Personally, I don’t give two fucks about whether people in 1868 thought that the 14th Amendment would still allow for segregation, outlawing same-sex marriage, or whatever else. They passed a provision that says (in part), “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Equal protection means that people have fucking equal protection. It was people that didn’t want the law to treat white and black people equally that decided after the fact that separate could still mean equal. That should be obvious bullshit to anyone with two brain cells to rub together, but motivated reasoning exists, so even otherwise intelligent people can make really fucking stupid arguments when they want a particular outcome badly enough.

                      Similarly, homosexual wasn’t even a word in the English language until around that time (first recorded use was in 1869 when an Austrian published a pamphlet anonymously arguing against a Prussian anti-sodomy law). That people would once view gay men as disgusting and thus see a legitimate government purpose in discriminating against them doesn’t make it valid for all time.

                      This has always been my biggest complaint about originalism. Too often, it simply serves as cover for people with social views stuck in the 18th and 19th century and that wish that they could continue to apply those values today.

                    4. “This has always been my biggest complaint about originalism. Too often, it simply serves as cover for people with social views stuck in the 18th and 19th century and that wish that they could continue to apply those values today.”

                      The argument against originalism is this: Proponents have their opinion on how language should be interpreted. The use originalism to pretend that there’s authority for their choice of interpretation being the only possible correct one. “appeal to authority” is a logical fallacy.

          2. So you believe that binding precedent really isn’t binding, and that lower courts should disregard it based on their own policy preferences. Got it.

            1. “So you believe that binding precedent really isn’t binding”

              No, I believe that your analysis of what is “binding precedent” isn’t controlling on the courts.

            2. Our court system is built around being adversarial, so yes, actually.

              If you have a sincere, deep belief that a given ruling is wrong, you should challenge it, and let the process work. The SCOTUS always has the option of saying “no, you’re dumb, we’re sticking with our precedent”. It also has the option of saying “hey, you’re right. We got it wrong/things have changed, we’re creating a new precedent.”

              And that’s true whether you’re a lawyer, a judge, or a member of the jury.

              What our judicial system is not built around is blind obedience to higher authority.

    2. The solution is to impeach the entire Supreme Court for Obergefell, including the dissenters who failed to stop their fellow Justices. They made a law by overturning a law, in violation of Article I Section 1. These lawyer scumbag tyrants are in insurrection against the constitution. They need to be tried for an hour, with their legal utterances as the sole evidence, then get sentenced to 10 years at hard labor in federal prison. To deter.

      1. … you want Biden to appoint all nine justices on the court?

        Bold plan. Let’s see how it plays out.

        1. No. Obviously, Biden won’t be allowed to appoint any justices, because under the McConnell Rule, Presidents aren’t allowed to appoint Supreme Court Justices if they have less than 4 years left on their terms*

          *Unless they nominate a jurist of Mitch’s choice.

  8. Does this also have repercussions for primary and secondary private schools which accept vouchers?

    1. Yes. Money = control. You take government money, you are at the mercy of whoever controls the government. Which right now is a bunch of leftist radicals, with a Potemkin president.

      1. At least the leftist radicals actually WANT the government to work, whereas the rightist radicals do not. That’s as good a reason as any to push out the rightist radicals.

        1. In the sense that a hacker WANTS software to work.

          1. I don’t think you know what “hacker” means.

    2. “Does this also have repercussions for primary and secondary private schools which accept vouchers?”

      One would hope so. “School choice” advocates want to give public money to private schools without any public accountability at all, because parents being able to send their children to schools that exclude “undesirable” elements of society is a large part of the point of having private schools.

      Even when the goal is not explicitly racist, sexist, homophobic, or about religious conformity, a major selling point for any private school is that it won’t allow in students that would be a drag on the success of the other students. It could be that the excluded students would be discipline problems, that their special needs would require too many resources that would detract from what is available to other students, or that those students are simply not talented and successful enough already and thus teachers wouldn’t be able to teach at a high enough level to the whole class to challenge the students currently at the top.

      This is why I am largely against “school choice” as pushed by libertarians and conservatives. It isn’t just about giving parents a choice of where to send their children. That is not the part of the concept that I disagree with. It is equally about the schools having the “choice” to exclude students that they don’t want to teach. That is the part that is unacceptable to me.

  9. Can this same argument be made at the nearly 100 percent of colleges that embrace critical race theory? Are the not using federal funds to create a hostile environment and/or discriminate against caucasians and Asians? Time to rethink how our higher education institutions are funded.

    1. What do you think is the definitive critical race theory texts you’ve read, and which parts of them can you point to that involve what you’re talking about?

      I’m betting 95% of conservatives in a lather about critical race theory have learned 99.9% of what they know about it from hostile, secondary partisan sources.

      1. “I’m betting 95% of conservatives in a lather about critical race theory have learned”

        That right there is where I’d bet against you, because you’re betting that conservatives CAN learn.

        1. Not in a hostile environment…

          1. An environment where learning is expected is “hostile” to Conservatives.

      2. The right-wing outrage machine that started gaining favor and influence decades ago is now all about finding boogeymen and straw men to fight. A movement that purported to be about ideas and freedom is now all about scaring people into worrying about how some Other is going to destroy everything good and right and true about America. Republicans no longer want to govern. They just want to generate as much outrage as possible to continue to soak up political donations and gain power that they use simply to get more attention and money and power. Actually solving problems and making people’s lives better is not on the agenda.

        1. ” A movement that purported to be about ideas and freedom is now all about scaring people into worrying about how some Other is going to destroy everything good and right and true about America. ”

          Nuh-uh! They claim it already happened. But they just. won’t. get. out.

    2. “Can this same argument be made at the nearly 100 percent of colleges that embrace critical race theory?”

      EXACTLY….

      1. Can this same argument be made by the nearly 100% of Conservatives who can’t make rational arguments?

        “EXACTLY….”

  10. People change over time. It took me several decades to shake the effects of having been brought up in a region pickled in anti-black racism. The factor motivating change in my thinking was continuing experience with racists as an adult.

    When the equal rights amendment was bruited, my response was shared I think by a lot of folks who understood the law well enough to know the ERA could not add much (or anything) to other laws already in place to protect rights for women. I asked, “What’s the point?” It was not until I saw the fervor of folks who opposed the equal rights amendment that I realized it ought to have passed. Whatever the formal state of the law, such virulent expressions of social hostility to women’s rights needed a formal rejection, I decided.

    Likewise, as recently as 20 years ago, I was committed to the notion that immigration was out of hand, and that immigration policy ought to be reformed with an eye to permitting only that immigration which did not disadvantage American citizens economically. Basically, I wanted the borders open only when labor shortages were crippling the economy. Now, I am not yet an open-borders fanatic, but I favor a far more liberal immigration policy than previously. What changed my mind was reading the VC, and deciding I did not want to be in the company of racist exclusionists who comment here.

    My experience with sexual identity issues in religious schools is beginning to remind me of those other experiences. I guard against a visceral anti-gay bias which comes from some place I can’t understand. It seems inherent. It is a tendency which I suspect I share with many others.

    I never thought that aspect of character defensible, or that I ought to act on it to hurt someone in any way. I have at times chosen to room with people I knew to be gay, and hired gay people with whom I would work closely—not because I wanted to combat bias, but only because I liked the rooming situation, and thought the hires potentially talented and useful. Both kinds of experience proved wisely chosen.

    I have never publicly expressed anti-gay bias, partly because I have consciously guarded against that visceral problem I thought I ought to distrust and get past. Nevertheless, as recently as 20 years ago, I was convinced that public policy regarding gays would go amiss if it went so far as to infringe religious prerogatives to exclude gays on religious grounds. My notion was that it was an uncomfortable dilemma, but one which gays ought to understand as the flip side of their own claim to public acceptance by people who struggled to do it. Liberty for all requires we accept gays, and requires alike that we accept a role for religious intolerance of gays. That was my view. I did not hesitate to express it, at least partly because I was confident it was founded in principle, not in visceral unease.

    But now, I am moving away from that view too. Reading anti-gay commentary here at the VC has convinced me. Just as society should have delivered a formal rebuke to opponents of the Women’s rights amendment, so too must it rebuke religious zealots who encourage anti-gay hatred.

    That is something those zealots ought to have discovered for themselves, on the basis of principle. They should have governed their own impulses, and opened the doors of their own institutions to gays on a basis of equality. They should have done it a long time ago. It is a discredit to the notion of rights that it has encouraged such adamant resistance, and sheltered such poisonously persistent expressions of hate. I must take care not to number myself among that company either.

    1. You know, when you draft text in a small scroll box, the inability to see your text in a body contributes to inconsistencies which point up errors. Push the button and look at your comment fully presented, and those errors leap off the page. My suggestion? If we can’t have an editing function, then give us a much larger drafting box.

      1. Buy a bigger monitor.

      2. At least on desktop, in the bottom right of the text box are two small diagonal lines. If you click those and drag, you can expand the size of the text box.

        1. Thank you, Escher, I never noticed that. (written in a wildly oversized comment box—see, no errors.)

    2. ” I guard against a visceral anti-gay bias which comes from some place I can’t understand. It seems inherent. It is a tendency which I suspect I share with many others. ”

      It seems to be a determining factor; the anti-gay animus of the Conservative position comes from a robust feeling of disgust at the very thought of gay sex. OK, fine, you get an icky feeling in your tum-tum when you think about two dudes having sex with each other. That’s an argument that you should stop thinking about two dudes having sex with each other, not that you should use the power of government to keep dudes from having sex with each other. The people I would expect to spend a lot of time thinking about a dude having sex with another dude would be dudes who want to have sex with another dude. I don’t want to have sex with another dude so I don’t have any problem not thinking about dudes gettin’ bizzay.

    3. “When the equal rights amendment was bruited, my response was shared I think by a lot of folks who understood the law well enough to know the ERA could not add much (or anything) to other laws already in place to protect rights for women. I asked, “What’s the point?” It was not until I saw the fervor of folks who opposed the equal rights amendment that I realized it ought to have passed. Whatever the formal state of the law, such virulent expressions of social hostility to women’s rights needed a formal rejection, I decided.”

      I really like the way you expressed this. It really explains the problem with conservative arguments against all kinds of progressive social policies and positions. The vehemence with which they argue against what are often mild efforts to change things betrays the extent to which they just don’t like certain groups.

  11. The plaintiffs want the religious exemption to Title IX struck down as applied to gays and the transgender under both the Due Process and Equal Protection clauses of the 14th Amendment. Such a ruling would be a landmark decision because it would recognize sexual orientation and gender identity as at least quasi-suspect classifications (which would be consistent with sex as a quasi-suspect classification and the logic from Bostock equating discrimination on the basis of sexual orientation and gender identity with discrimination on the basis of sex).

    What I am not clear about is whether it might be a much bigger landmark decision by being the first instance of striking down a religious exemption because it permitted discrimination proscribed by the Constitution.

    1. Clearly that bridge has been crossed. That’s what Obergefell was about.

      The only remaining question is which constitutional claim trumps.

      1. Obergefell was not decided based on sexual orientation being a quasi-suspect classification and no religious exemption was at stake in Obergefell.

  12. I don’t see sue and settle as being an option here.

    The colleges have an Establishment Clause claim.

    Even if you disagree with the claim, it’s plausible enough to make intervention a matter of right.

    1. I’m not following what the Establishment Clause claim is.

      1. The US is a Christian nation, and should assemble its laws in accordance with the views of the founder of the Christian church, who felt that separation of church and state was important to his church’s mission.

      2. Pretty much the same as Bob Jones University’s. Congress is finding churches based on whether it finds their doctrines agreeable. Remember, the Supreme Court accepted Bob Jones’ claim as valid, but held that a state has a compelling interest in eradicating racial discrimination which overrides religious freedom.

        But the Supreme Court has subjected sex discrimination only to intermediate scrutiny, allowing a number of laws (like sex-specific selective service and statutory rape laws) which it explicitly said it wouldn’t allow if the categories were racial and subject to strict scrutiny.

        So the argument here is that Bob Jones is likewise limited to race discrimination, which is alone a strict scrutiny/compelling interest category, and not to various other kinds of discrimination. When the constitution subjects a classification to mere intermediate scrutiny, religion claims trump it. At the very least, the Religion Clauses permit government to decide to exempt religion from being subject to the classification.

        Justice Roberts, in previous religious exemption cases, was very careful to say that one couldn’t get a religious exemption for racial discrimination. He was equally careful not to mention any other kind. I suspect he will get at least four of the Court’s five other conservatives to agree with him on this one.

        1. Firstly, I think you are making a Free Exercise Clause argument. Secondly, your analysis that the state requires a compelling interest to override religious freedom no longer applies to neutral and generally-applicable laws because of Employment Division. Thirdly, the fact that the government must overcome intermediate scrutiny when it discriminates on the basis of sex does not necessarily mean it does not have a compelling interest in proactively eliminating such discrimination.

          Additionally, you are missing an important point. The defense need not mount a Free Exercise defense in order to win. They only need to show that Title IX’s statutory religious exemption is permitted by the Constitution. If he is inclined to rule in favor of the defense, I would expect Roberts to rule on this narrowest ground without addressing the issues you raised.

          1. No, I am definitely making an Establishment Claise argument, in no small part precisely because Smith doesn’t apply to it.

            It’s Establishment Clause because the subsidies involved are to religious institutions, not individuals. The government is using its money to determine what religious doctrines may be taught and who may be considered a church member in good standing. Only religions with approved doctrines can get the money.

            Fulton v. City of Philadelphia addresses the Free Exercise argument. I recognize that if Smith is narrowed, a separate Establishment Clause argument may be innecessary.

            I think City of Greece is very instructive. Broadly interpreted, it embraces the principal that when government sibsidizes a church, the message remains the church’s message, not the government’s, and for that reason the government can’t condition the subsidy on controlling the message. Just as government inviting legislative prayer does not make that prayer government prayer, government subsidizing religious education does not make that education government education.

            After all, education is as core a traditional religiois function as prayer. If government doesn’t like the Religion Clause implications of its being involved in core religious functions like education, it always has the option of simply getting out of them. Giving churches money on an equal footing with secular institutions is one thing. But thinking it can tell them what to teach or who they can teach it to is quite another. That’s Establishment. It’s one thing to have ouside standards for subject like chemistry. It’s quite another for subjects like what a marriage is or what constitutes moral conduct.

            1. In Bob Jones, the Court rejected your argument

              Bob Jones University also contends that denial of tax exemption violates the Establishment Clause by preferring religions whose tenets do not require racial discrimination over those which believe racial intermixing is forbidden. […] a regulation does not violate the Establishment Clause merely because it “happens to coincide or harmonize with the tenets of some or all religions.” […] The IRS policy at issue here is founded on a “neutral, secular basis,” […] and does not violate the Establishment Clause

              I think you greatly overread the scope of Town of Greece. It’s holding applies only to “a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Also, Title IX does not require how subjects are taught.

              1. Most states criminalize murder, which also happens to be an Old Testament Commandment. This is not Establishment.

  13. A basic principle of libertarian thought, is to categorically deny the existence of “positive” rights, rights that obligate people to act, rather than just refrain from some interaction with the person exercising the right.

    This is why: Admitting the existence of “positive” rights inevitably leads to the erosion of traditional “negative” rights. If somebody is entitled to something, somebody else is now obligated to provide it.

    Right to engage in same sex relations? A negative right.

    Right to have people approve of that, or enable it? A positive right.

    SSM could have been legalized as a negative right, “Nobody can stop you from doing it”, but that’s not our legal culture today. It was, predictably, legalized as a positive right, resulting in everyone losing another increment of their liberty.

    That was my chief reason for opposing it: Because it was perfectly predictable that the courts forcing recognition of SSM would result in everybody being forced to enable it.

    1. Obergefell established the negative right of same-sex couples to enter into the institution of civil marriage.

      1. Yeah, and that’s why bakers are being forced to bake cakes, and florists supply flower arrangements: Because it’s a ‘negative right’.

        1. And Bellmore once again proves that he’s either an idiot (confusing non-discrimination laws with marriage laws) or a liar (conflating non-discrimination laws with marriage laws).

          Regardless of whether he’s an idiot or a liar, he is wrong: to the degree that bakers and florists are being sued, it is because of non-discrimination laws, and not marriage (same-sex or otherwise).

        2. “that’s why bakers are being forced to bake cakes”

          If bakers don’t wanna bake cake, why are they bakers? By contrast, I don’t wanna bake cakes for other people, so I don’t. See how easy that is?

        3. “Yeah, and that’s why bakers are being forced to bake cakes, and florists supply flower arrangements: Because it’s a ‘negative right’.”

          Think of it this way:

          Prison staff: Some prisoners have been caught hiding contraband and even small weapons in their beards. You have to shave at least every other day and not have a beard.
          Prisoner1: No.
          Prisoner2: No.
          Prisoner3: No.
          Prison staff: Why not?
          Prisoner1: I just don’t want to. I want a beard.
          Prison staff: Too fucking bad. Shave or be shaved.
          Prisoner2: I’m allergic to shaving cream and it makes me break out in really irritating and painful rashes.
          Prison staff: We’ll let you use an electric razor. Use it to shave or be shaved.
          Prisoner3: My religion requires me to maintain a beard.
          Prison staff: Okay. Courts tell us that we have to let you have a beard, but it can’t get so long that a guard would have to look carefully to find something you are trying to hide.

          You see the issue? If you don’t want to follow a law, but your only reason is that you don’t feel like it, the government gets to tell you to suck it, and you have to follow the law. If you can show clearly with facts and logic that you have a legitimate reason to not follow the law, then the government might give you an accommodation, but the legal burden would be on you to show that you need it. If you claim that you can’t follow the law because of religious beliefs, then you don’t need any facts or logic, just that those beliefs are “sincerely held”, which courts will give you a ton of benefit of the doubt on.

          When the religious want to be exempt from laws that affect only them or that have only really small impacts on others, then reasonable people can simply shrug and say “whatever”, even if those religious beliefs seem silly, bigoted, or irrational. But accommodating religious beliefs when significant rights or safety of third parties is at issue, then it becomes a far bigger problem to not challenge the person wanting to be exempt from the law to show why they need to be exempt from it.

          People are often using religious freedom as a way of not having to explain why they think the way that they do. If someone didn’t want to bake a cake for the wedding between two guys and said that he thinks that gay men are disgusting perverts that should be thrown in jail instead of being allowed to legally marry, then no one will try and defend his right to be a bigoted asshole. But a baker claims that his religion doesn’t allow him to support something “sinful”, and we aren’t supposed to ask that baker why he believes that.

          As a matter of legal analysis, why he has those religious beliefs shouldn’t make a difference. But as a moral question, religion shouldn’t be used as shield from criticism when someone is acting in a discriminating way against others.

    2. So no one has a positive right to have, say, Twitter or Amazon provide them with services, right?

    3. “That was my chief reason for opposing it: Because it was perfectly predictable that the courts forcing recognition of SSM would result in everybody being forced to enable it.”

      Nobody is forcing you to get into an SSM. Or any other kind of marriage. The decision of whether or not to be married is still yours. If you wanna complain, complain that the government makes you get permission to stop being married.

  14. It is ironic. Homosexual marriage is not a homosexual idea. They are smart and rich. They do not want to lose their assets. It is a family law idea, because that business is moribund. The lawyer destroyed marriage. Only a suicidal fool would get married to an American woman. They were desperate for business. Very few homosexuals are falling for this lawyer trap. Of those who do, the divorce rate is very high. So, the lawyer trick worked.

  15. This is where the fraudulent sophistry that declining to tax is government subsidizing you, “giving” you money, becomes useful for lying, power-hungry politicians.

    “And that’s not allowed for religion!”

    Yet taxes are simple laws. If you tax a religion, and it doesn’t pay, you seize its stuff to sell it off, and that impacts the free exercise thereof.

    Refusing to tax it, i.e. refusing to impact the free exercise thereof, is not giving religion special treatment, other than that minimally required by the Constitution that, you know, you cannot prohibit the free exercise thereof.

    The inter-religious detente of the First Amendment, where everyone agrees no one gets to use the power of government against each other’s religion, or in favor of their own, does not allow taxation as punishment for religious beliefs that violate various Titles, which are normal laws, and thus subordinate to the First Amendment.

    “But soandso said…!” Don’t care. Taxing religion hurts it. If they don’t pay taxes and their stuff is seized or they are shut down, that’s a problem.

    There’s another fiction all these religious exemptions are government deciding to be nice, but it could tax them any time it wants (“So watch out and play ball, wink wink!”)

    Yet the only court case to near this laughed at it, using the property tax seizure of a church as an example.

    1. And all this would be relevant if we were talking about churches and not universities.

      The constant attempt to redefine everything as a church in order to avoid the same government regulations your peers are subject to does more to harm religious liberties then any other effort in the 20th and 21st century.

      1. “But my religion says I have to…” is a handy, catch-all excuse for violating any law, which is why I don’t consider it a valid reason to invalidate laws. If God doesn’t like a law, He has a variety of tools at His disposal to make His point. Mostly He seems to choose to let things be.

    2. If only there was some kind of religious authority for the idea of paying your taxes. If only some religious figure would come out and say “just pay the taxes, dammit!”

    3. “Yet taxes are simple laws. If you tax a religion, and it doesn’t pay, you seize its stuff to sell it off, and that impacts the free exercise thereof.”

      The obligation to pay debts is a simple law too. If a court orders a church’s assets to be seized and sold off to pay a company that did construction work for the church, that doesn’t impact free exercise, and so neither would seizing a church’s assets to pay taxes that it owed.

      The whole “taxes are theft” meme from some libertarians is such bullshit anyway. Taxes are paid for services rendered. The government is not stealing anyone’s money.

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