IRS Could Revoke Non-Profit Status for Religious Institutions over Same-Sex Marriage

Based on Wednesday’s Supreme Court ruling, in which the Court majority determined that the Defense of Marriage Act’s federal definition of marriage had to incorporate state-based same-sex marriages, Internal Revenue Service regulations could be modified to remove non-profit status for churches across the country.

The DOMA decision makes clear that marriage is a state-to-state issue, meaning that religious institutions that receive non-profit status on the federal level but do not perform or accept same-sex marriages in states where it is legal could have non-profit status revoked. Furthermore, should the IRS move to revoke federal non-profit status for churches, synagogues and mosques that do not perform same-sex marriage more generally, the Court could easily justify that decision on the basis of “eradicating discrimination” in religious education.

In 1983, the Supreme Court ruled in Bob Jones University v. United States that it was within the scope of the First Amendment’s protections for religion for the IRS to revoke the tax exempt status for the university based on its policy prohibiting interracial dating. The Court determined that the “Government has a fundamental, overriding interest in eradicating racial discrimination in education … which substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of their religious beliefs.”

The Supreme Court is clearly leaning toward a similar move here. The Court stated in Romer v. Evans (1996) that states could not take measures to prevent future distinction of gays and lesbians as a protected class under state law; in Lawrence v. Texas (2003) the Court ruled that same-sex sexual activity was Constitutionally protected; in the DOMA case on Wednesday, the Court ruled that DOMA was unconstitutional not merely on federalism grounds, but because it violated the equal protection clause of the 14^thamendment and the due process clause of the Fifth Amendment.

On the state level, a movement is already under way to revoke non-profit status for religious organizations that do not abide by the same-sex marriage. In Massachusetts in 2006, Boston Catholic Charities withdrew from adoption services thanks to the state mandate on same-sex adoptions, rather than fight the issue in court. In California, a bill is already making its way through the legislature to bar non-profit status for any religious youth group that discriminates on the basis of “gender identity, race, sexual orientation, nationality, religion, or religious affiliation.”