IRS chief Koskinen and the tax status of faith-based colleges

IRS commissioner John Koskinen deserves a measure of praise from all who hope to see America’s great heritage of robust, peaceful religious pluralism preserved for future generations.  Since the Supreme Court’s same-sex marriage decision in June, Koskinen became the first administration official to provide a clear—though limited—assurance that while he is in office he will not use his agency’s power to penalize religious organizations who dissent from the Court’s view of marriage.  The commissioner made this promise in a recent Senate subcommittee hearing.

Sen. Mike Lee (R-Utah) asked whether during the remaining two-and-a-half years of Koskinen’s term he would commit not to “take any action to remove the tax-exempt status from religious colleges and universities based on their belief that marriage is between a man and a woman.”  Koskinen’s straightforward response was, “I can make that commitment.” 

{mosads}The Court’s new nationwide right for same-sex couples to marry poses an obvious challenge to those faith communities who hew—as a matter of their obligations to the God they worship—to an opposite-sex definition of marriage. Will an Islamic community lose its non-profit status if it refuses to allow a same-sex couple to marry in its mosque? What if Orthodox Jewish Yeshiva University in New York refuses its social hall for a wedding?

Except in grave instances, the American way of dealing with these tensions has been to defer to local communities and individual rights. Long before same-sex marriage was on anyone’s radar screen, untold American couples dealt with a minister or faith community refusing to marry them by finding another faith community that would.  The result has been a society of genuine religious pluralism and civic harmony.  While it may seem unfortunate that not everyone agrees about deeply important issues, violating the fundamental rights of people of faith and coercing their consciences makes matters far worse.

America set the world standard for welcoming religious diversity while avoiding religious wars. In most of the world, religious diversity has been “managed” by government repression, leading inexorably to civil strife and division. Our guarantee of broad, strong, and equal protection for all religious beliefs and all peaceful religious practices is among our greatest national achievements—an achievement that must be secured for the future.

Religious freedom, same-sex marriage, and their respective supporters can peacefully coexist.  This reality is demonstrated by the experience in several states before the Supreme Court’s same-sex marriage decision.  Twelve states legalized same-sex marriage through democratic processes, eleven through state legislatures and one by popular referendum.  

With some important, high-profile exceptions, same-sex marriage existed in those twelve states with relatively few conflicts with traditional religious communities.   This is partly because proponents of new marriage rights avoided antagonizing their fellow citizens in order to help build positive public sentiment towards same-sex marriage. 

But in those states religious freedom and same-sex marriage also existed together in relative peace because the new marriage laws included express protections for religious liberties.  The religious-liberty language in these marriage laws communicates to potential litigants, to courts, and even to future legislatures that the policy of the people of that state is to ensure that religious freedom and same-sex marriage coexist. 

By contrast, none of the numerous court decisions that have mandated same-sex marriage—including Obergefell v. Hodges in June—have included meaningful protections for religious freedom.  It thus remains up to Congress, state legislatures, future courts, and even executive agencies such as the IRS to determine to what extent religious groups are permitted to dissent.

This is why IRS commissioner Koskinen’s promise serves as a ray of hope.  Americans do not want to see our far-too-polarized society plunged into increasingly nasty conflicts over whether government will stigmatize and penalize religious dissenters over same-sex marriage. 

Senator Lee acknowledged that a court or future Congress—not to mention a presidential order—could direct the IRS to begin challenging dissenting organizations’ tax status. Koskinen’s guarantee is a matter of his word—not of law—and that word will mean nothing when Koskinen leaves his post.  Taken literally, his promise applies only to faith-based colleges and universities, not to thousands of other faith-based ministries and nonprofits.

Legislation thus is needed to clearly protect the long-established civil rights and liberties of Americans of all faiths.  Individual believers, faith communities, and other friends of religious liberty must educate themselves, speak up, and take action to make rigorous protections of religious exercise a matter of law.

For the next fifteen months, Americans will be choosing their candidates and voting for officials from president to city councilor.   A key question they must ask is, “Will this man or woman take decisive, proactive steps to ensure that our religious freedom and peaceful religious pluralism remain the birthright of all Americans for generations to come?”   

Walsh is the founder and president of the Civil Rights Research Center in Washington, D.C.  The Civil Rights Research Center (CRRC) works beyond racial, political, religious, and socio-economic barriers to promote civil rights and liberties and equal justice under law for all.