The mask is off.
The Supreme Court ruled Friday that same-sex marriage must be legalized across the land , and it didn't take long for some people who cheered that decision to move on to the next goal: punishing dissenters.
That possibility was raised during oral arguments in the case back in April, when the U.S. solicitor general, Donald Verrilli, admitted he didn't know if a ruling in favor of same-sex marriage would lead to the loss of tax exemptions for religious organizations that declined to recognize such unions. From the transcript of the exchange between Verrilli and Justice Samuel Alito :
Alito: (I)n 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 college if it opposed same-sex marriage?
Verrilli: You know, I -- I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I -- I don't deny that. I don't deny that, Justice Alito. It is -- it is going to be an issue.
Yes, yes it is.
Already, we have an op-ed at Time.com from the New York Times' "Beliefs" columnist, Mark Oppenheimer, suggesting the latest ruling is just the excuse needed to take away the tax exemption applied to religious organizations -- or perhaps just "conservative" ones, or maybe even all non-profits. It's a little unclear how far Oppenheimer would go in gradually ridding the country of private charity, but that makes his thesis all the more chilling.
The clearest statement of his idea is this:
"Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses."
That would seem to limit the "radical step" only to those organizations of whom the bien pensant disapprove. That seems to be underlined later in the piece, when Oppenheimer argues, "the logic of gay-marriage rights could lead to a reexamination of conservative churches' tax exemptions (although, as long as the IRS is afraid of challenging Scientology's exemption, everyone else is probably safe)."
Oppenheimer also refers to other, non-religious organizations such as Planned Parenthood, the National Rifle Association and schools and colleges with large endowments, which is why it's a bit hard to tell exactly what he proposes. But looking beyond his single essay, it seems far more probable that the sights of a triumphant movement will be trained instead on those "conservative churches" and their like. I fully expect that was not the intent of many people who supported same-sex marriage and cheered Friday's ruling. But it is very clearly the intent of many of the opinion-makers who helped clear the way for them, and who are now plotting the next section of their course.
UPDATE at 5:30 p.m.: In fact, here's another such piece that is explicitly cast as disowning the previous "if you aren't gay, this doesn't affect you" argument. It doesn't affect you ... unless your church is preaching something the state doesn't like, in which case the state should start making your church pay taxes. So this won't affect you if you aren't gay and are willing to say only those things which are approved. It's as if so many things said in order to bring about this change weren't meant sincerely ...
BACK TO THE ORIGINAL POST: That's in part because the momentum is at their back, and ascendant groups tend to overreach at times like this. Note that, just ahead of the ruling, one of the ACLU's top lawyers wrote an op-ed for the Washington Post explaining why her organization doesn't really support the "religious freedom" part of the federal Religious Freedom Restoration Act any more. Some of us noted , during this year's RFRA debate at the state level, the absence of calls by state RFRA opponents for the repeal of the federal law on which it was based. Now we hear those calls -- albeit only when victory at the Supreme Court was almost at hand, which really should cause us to deduct points for intellectual honesty. It is instructive that, despite that op-ed's many references to discriminatory actions against gays and lesbians being made and justified under RFRA, the only concrete examples the op-ed lists are instead related to abortion and contraceptives. There is no clearer indication that this fight, like the one against the tax-exempt status for "conservative churches," is really about promoting one political ideology over another, rather than securing basic, inarguable liberties.
In fact, this brand of illiberalism is a wholly left-wing creation. Why -- contrary to Oppenheimer, and seemingly paradoxically -- do conservatives generally support a tax-exemption regime that could be construed as subsidizing organizations we deem immoral? I can think of at least two reasons. First, we actually believe in allowing others the freedom to support their causes, even if we disagree with them. And second, we don't think government has first dibs on as much of private citizens' income as it desires.
The proper way to think about tax exemptions for private non-profits is not that the government is promoting or subsidizing these charities, but rather that the money wasn't the government's in the first place. The reason this holds true is twofold: The government is not distributing money from the Treasury but rather simply not collecting it; and the exemption applies very broadly to all non-profits, so as not to discriminate or favor one group or activity over another. It is thus different from government programs that do promote a particular kind of activity -- say, a program to promote home energy-efficiency improvements -- over others. Such a program may be justifiable (full disclosure: I personally have taken advantage of such incentives) but there is no denying it favors one kind of economic activity over others. Allowing exemptions for private non-profits as disparate as Planned Parenthood and the NRA, on the other hand, is a broad-based practice that by and large does not discriminate.
When we allow tax exemptions for private non-profits, we are acknowledging there is a vast domain of activity, whether charitable or educational or advocacy-based, that is good for society but is best and most appropriately done outside the public sector. This is in part because the government shouldn't be involved in many of those activities precisely because public opinion of them is sharply divided (e.g., Planned Parenthood and the NRA). It is in part because the tax exemption is worth less money than the amount given to the cause, meaning that even if one does consider the exemption a subsidy, it is a means of achieving the charitable goal at a lower public cost. And it is also because it is a good thing in and of itself to have organizations that help people independent of government policies about that help or their agreement with government policies.
The ACLU op-ed cites some Catholic charities' refusal to offer or counsel women about abortion services as a kind of discrimination worthy of stripping them of RFRA's protections. But at least the current arrangement allows for both those charities and non-profits such as Planned Parenthood. Does anyone doubt that, in a nation tilted heavily, if not exclusively, toward public-sector charity, the likes of the ACLU would lobby for prioritizing abortion access over counseling about other options? Why would we want to force ourselves into a situation where that choice has to be made, rather than encouraging a range of entities? Having a wide variety of charitable organizations independent of government is an invaluable check against government overreach, and intrusion on liberty, in the distribution of aid. Removing the tax exemption from non-profits either generally or in specific cases runs counter to all these goals.
Arguments against private charity, such as the following part of Oppenheimer's piece, instead rely on denying the full spectrum of work being done:
"Defenders of tax exemptions and deductions argues that if we got rid of them charitable giving would drop. It surely would, although how much, we can't say. But of course government revenue would go up, and that money could be used to, say, house the homeless and feed the hungry. We'd have fewer church soup kitchens -- but countries that truly care about poverty don't rely on churches to run soup kitchens."
Well, neither does this country, except in the very narrowest sense: Perhaps only "churches" (his word) run "soup kitchens," but this country also spends tens of billions of dollars a year to provide food stamps to approximately 1 in 7 people . The majority of the federal budget, in fact, consists of redistributing money from some people to others. The notion that private charity is somehow crowding out government programs -- rather than the other way around -- is ludicrous.
Very, very little of this way of thinking can be justified by Friday's court ruling. Rather, the ruling is merely being used an excuse for some folks to attack people and organizations they were inclined to attack anyway. "Live and let live," huh?