Beto O’Rourke did not threaten the Democrats’ 2020 chances when he announced “Hell yes, we’re going to take your AR-15, your AK-47.”
Any Democratic candidate for president could walk that back, endorsing “sensible” gun control laws and opposing anything like confiscation, especially since the U.S. Supreme Court has ruled that there is an individual right to bear arms.
But, it was a different matter when O’Rourke answered, “yes” when asked whether “religious institutions like colleges, churches, charities — should … lose their tax-exempt status if they oppose same-sex marriage?”
O’Rourke was promising to end the tax exemption of any religious educational institution that refused, for example, to assign married student housing to gay couples.
The problem for the Democrats is that there is a discrimination precedent that cannot be ignored. In 1976, the IRS revoked the tax-exempt status of Bob Jones University on the grounds that its ban on interracial dating violated public policy.
The Supreme Court upheld that revocation, despite the good faith religious beliefs of the university. The court held that the IRS action did not violate the Free Exercise Clause of the Constitution. Bob Jones would not apply to churches, but it would include most religious schools.
The Bob Jones case helped decide the 2016 election. During oral argument in the Obergefell case, in 2015, Justice Samuel Alito asked Solicitor General Donald Verrilli Jr., if the court constitutionalized same-sex marriage, “would [Bob Jones] apply to a university or a college if it opposed same sex marriage?”
Verrilli answered candidly, “it is going to be an issue.”
George Mason Law Professor David Bernstein called that response “the argument that cost Democrats the presidency.” Of course, in a close election, many factors contributed to the loss. But that comment was surely one of them.
I gave a talk at one of those potentially threatened institutions — Regent Law School — in fall 2016. Verrilli’s response was viewed as an existential threat to traditional religious life.
To prevent the case’s extension, religious believers felt they needed to control the presidency and the U.S. Supreme Court. That explained why everyone I talked to at Regent supported Donald Trump, despite profound distaste for him and many of his policies. From the perspective of heading off Bob Jones, that support has paid off.
Bob Jones was bound to come up again in 2020.Unlike gun confiscation, the case will not be easy to deal with by any Democratic presidential nominee.
The LGBTQ community, and its supporters, are a loyal and powerful Democratic constituency.
They are going to be asking why Bob Jones does not apply to discrimination against them. Donald Trump is going to insist on an answer to that question. You could already hear the strategy unfolding in Attorney General William Barr’s speech last week deriding the “unremitting assault on religion” by secularists.
Any competent lawyer can distinguish the current context from the facts of the Bob Jones case. A refusal to apply Bob Jones based on something like that, however, will not satisfy anyone.
There really are only three possible responses to this question, all of which are filled with political threat.
One response would be to argue that the Bob Jones case was wrongly decided and should never have been brought. In 1983, the religious establishment, embarrassed by the complicity of Christianity with slavery and racism, abandoned Bob Jones University to its fate. A few thoughtful critics did warn against the IRS effort at the time, but their concerns about religious liberty were brushed off.
It is unlikely that a Democratic nominee will go this route, however, because it would potentially alienate both the African-American and LGBTQ communities.
A second response would be to embrace Bob Jones, even if quietly and mildly. This response might doom the party’s electoral chances. There are literally thousands of educational institutions that would be potentially affected, including quite mainstream Catholic and Protestant universities. These represent millions of voters.
Not even most supporters of same-sex marriage want dissenting religious institutions to lose their tax-exempt status.
Nor can a Democrat embrace Bob Jones, but forswear acting on it because of just such realistic electoral calculations. Religious believers would understand that once elected, the gloves would come off.
Only a principled refusal to apply Bob Jones to current anti-gay discrimination will do — some reason why Bob Jones was right then, but not appropriate now.
Obviously, the candidate could point out that racism is unique among all of America’s discriminatory stains. Eradicating racism is both more difficult and more necessary than any other fight.
But worldwide discrimination against gay people is increasing. Even in Europe, gay lives are now threatened. No diminishment of their plight should be acceptable. There can be no suggestion that this discrimination is somehow less harmful.
The only principled response that can justify not pursuing the Bob Jones approach is the weakened state of religious life in America in 2019 and the pressing need for secular-religious reconciliation.
In 1983, religion was a monolithic presence in American life. That is why the Bob Jones case was about discrimination, not religion. In 2019, however, traditional religion no longer controls the culture. Any application of Bob Jones will weaken religion even further.
Well, so what?
If traditional believers are out of step with modern values, they will just have to be forced to change. Many non-believers would say this, and some believers, too. These people don’t realize how much secular America needs a new partnership with religion.
This is a large topic, but it boils down to this: America is rapidly secularizing. More and more people, especially the young, have no connection to organized religion. That will only increase.
America is also troubled, angry, resentful and despairing.
These trends are related. Our secularism is sick. Traditional religious wisdom contains the resources that we need to heal our secularism. But right now, the distrust between believers and non-believers prevents any spiritual cooperation.
At this juncture, the very worst thing that could happen would be an act perceived as an attack on religion generally. Not for the sake of religious believers. But for the sake of the rest of us.
In a way, Barr was right. There has been a kind of successful war against religion since the Enlightenment began.
But that has now led to a struggle against nihilism and meaninglessness. To win that fight, secularism needs the help of traditional religious sources. Rejecting Bob Jones would be the first step in overcoming the secular-religious divide that has had such terrible implications for secular life.
Capital-Star Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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