Thursday, June 25, 2015
The New York Times has published a piece exploring how nonprofits could be affected by the pending Supreme Court decision in Obergefell v. Hodges, which raises the issue of whether the United States Constitution establishes a right to enter into a gay marriage. The gist of the article is that private religious schools across the nation impose codes of sexual conduct, including prohibitions of same-sex relationships, and these schools fear that their policies could risk the loss of their federal income tax exemption. Why? If the Court recognizes a constitutional right to enter into gay marriage, the Internal Revenue Service could find school policies on sexual conduct to violate fundamental public policy under Bob Jones University v. United States.
Although many legal scholars seem to doubt that schools would face this risk in the near term, the schools do have cause for concern. As I have written and illustrated previously in two law review articles, the public policy doctrine is poorly defined and easily manipulated. Further, the NYT article observes that, during oral argument in Obergefell, Justice Alito posed the question of how the decision would affect the tax exemption of private religious schools to Solicitor General Donald B. Verrilli Jr. In an exchange that we previously covered on this blog, Mr. Verrilli admitted at oral argument that the exemption question “is going to be an issue.”