Could The Supreme Court's DOMA Decision Spell The End For Tax Exemption of Religious Organizations?

Thirty years ago, the Supreme Court affirmed a decision of the Internal Revenue Service that Bob Jones University and Goldsboro Christian School were not operating as charitable organizations entitled to exemption from taxation under federal law.

The effect of the Supreme Court's decision was significant.  The schools lost their status as exempt from income taxation, and the schools' supporters lost the benefit of tax deductibility of their donations to the schools.

The loss of tax exemption is, for want of other words, a kind of capital punishment for organizations that depend on donations to engage in their charitable enterprises.  That punishment was imposed on the schools because, in the analysis by the IRS and the Supreme Court, they acted contrary to settled public policy by maintaining standards that discriminated on the basis of race.  Bob Jones, for example, prohibited interracial dating by students matriculated at the University.  Goldsboro Christian limited admission to school to Caucasians.

In 1970, an appeals court decision enjoined the IRS from recognizing as tax exempt certain racially discriminatory private schools in Mississippi.  Thereafter, the IRS announced its adoption of an interpretation of the Internal Revenue Code under which policies of racial exclusion would invalidate application for tax exempt status.  It was that decision that placed the status of Bob Jones and Goldsboro Christian in issue.

So what does the thirty year old Bob Jones University decision have to do with the DOMA decision of the Supreme Court?

Well, up until this DOMA decision, it could hardly be claimed that the settled law of the land was that denying access to marriage to same sex couples was a form of discrimination so wrong as to violate public policy.

After the DOMA decision, the question is fairly raised by Justice Kennedy's opinion for the Court, whether denial of "equality" of access to marriage for same sex couples constitutes a form of discrimination that the Constitution of the United States prohibits.

If Kennedy's decision is a clarion against prohibited discrimination, then there is no reason in the law to distinguish between the discriminatory denial of educational access based on race and the discriminatory denial of marital access based on gender.

I do NOT think we have arrived at that point in time.

I DO think that sharp language from Justice Kennedy critical of Congress' motivations -- charging the Congress, essentially, with base and injurious intent -- sets the stage for the day when individuals who are refused a request to be married in a particular church will turn to the IRS and ask how, in these days -- it can be consistent with public policy to harbor such discriminatory contempt for them.

And that is why the Bob Jones case should scare churches, synagogues and mosques.

We now have two decisions from the Supreme Court touching on issues related to the highly contentious debate over the legalization of same sex marriage.

In Hollingsworth v. Perry, the Supreme Court concluded that private parties defending California's Proposition 8 on appeal from a federal trial court decision striking down Prop 8 lacked the necessary special and peculiar injury and interest to confer "standing" on them.  In the absence of "standing to sue," their appeal was found to be without procedural merit.

The Hollingsworth decision vacates a decision of the Ninth Circuit.  Moreover, rather than leaving the Ninth Circuit free to reconsider and reaffirm its prior holding, the Court ordered:  "The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction."  This portion of the decision might get lost in the fog.  This DEPRIVES the Ninth Circuit of the opportunity to impose on ALL THE STATES within the NINTH CIRCUIT's JURISDICTION the reasoning it used to affirm the trial court's decision striking Prop 8.

So, in California, where the majority of voters amended their Constitution to prohibit same sex marriage, in the federal judicial district in which the trial was held, Prop 8 is null and void.  But, at least for now, other States are not bound by a federal appellate decision from the Ninth Circuit finding a fundamental right to marriage that is violated when a State limits marriage to opposite sex couples.

In the second case, United States v. Windsor, the Supreme Court struck down ONE PORTION of the federal Defense of Marriage Act (often referred to as DOMA).  Justice Kennedy explains succinctly the two operative provisions of DOMA:

"DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sexmarriages performed under the laws of other States. See 28 U. S. C. §1738C.  Section 3 is at issue here. It amends the Dictionary Actin Title 1, §7, of the United States Code to provide a federal definition of 'marriage' and 'spouse.'"

Section 2 of DOMA reflects a judgment made by Congress in the 1990's that each State should decide for itself how to treat the decisions regarding regulation of marriage in other States.  It is a section having to do with how States accord "full faith and credit" to the legal acts of other States.  The Constitution speaks to this question in Article IV, section 1, where it states:

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

When Congress enacted Section 2 of DOMA, it concluded that it would allow each State to determine under its own legal construct, how to treat marriages initiated, regulated and terminated in other States.  That section of DOMA is NOT INVOLVED in today's decision.  For today, at least, Section 2 of DOMA remains valid law.  This means each State continues to enjoy a power of regulating the institution of marriage free from assertions made that, by recognizing or denying recognition of a same sex marriage in another State, such a State has denied full faith and credit to a Sister State's public acts, records and judicial proceedings.


What was at issue in the Windsor case was the portion of DOMA that defined marriage for federal law purposes as being limited to opposite sex couples.  The Court struck down that provision of DOMA.

Tantalus and Carhart: On the Utility of Greek Mythology

One of the mortal sons of Zeus, Tantalus, grieved the gods by slaying Pelops,  his son, roasting him, and serving him up at a feast for the gods.  When his crime had been discovered, Demeter had already consumed his shoulder.

The gods restored Pelops to life, created a shoulder of marble for the portion consumed, and meted out a terrifying punishment to Tantalus for his twin crimes of testing the gods and murdering his son.

Tantalus was condemned to stand forever in a pool of water, under the shade of fruited boughs.  Whenever he bent down to slake his thirst, the waters of the pool retreated from reach.  Whenever he reached above to take of the fruit-laden boughs, the branches arched upward taking their fruits from his reach.

 Thus he gave to our language, through its Grecian roots, that word, tantalize, which bespeaks the unsatisfiable hunger or thirst.  In the long view, Tantalus' punishment seems well drawn and fair.  Tempt and test the gods.  Do so by the murdering of your own son.  In return, be tormented with unquenchable thirst and gnawing hunger, forever.

And so to this day's news, brought to you by our modern Tantalus, Doctor Leroy Carhart, America's "pre-eminent" provider of late term child snuffing.  Thanks to the unique, undercover, investigative reporting of Live Action, we learn that Dr. Carhart likens his medical practice to that of a cannibalistic kitchen magician:

When a Live Action investigator, who is 26 weeks pregnant, asks about what happens to the baby during the procedure, Dr. Carhart responds:

Dr. Carhart: It gets soft – like, mushy – so you push it through.
Woman: So what makes the baby “mushy”?
Dr. Carhart: The fact that it’s not alive for 2 or 3 days.
Woman: Oh. So I’ll have a dead baby in me?
Dr. Carhart: For 3 days, yeah… It’s like putting meat in a crock pot, okay? … It gets softer. It doesn’t get infected or–
Woman: OK, so the dead baby in me is like meat in a crock pot.
Dr. Carhart: Pretty much, yeah … in a slow cooker.

What an imaginative fellow, what a worker in words.  "It's like putting meat in a crock pot, okay?"

Carhart's manner of expression is not new.  In the early 1980's, as part of depositions related to a lawsuit in which I was a defendant, abortionists Takey Crist and Paul Williams acknowledged that they or other abortionists relied on euphemisms such as "tissue," "conceptus," and "products of conception" to describe the child in utero.  There was a particular euphemism they acknowledged that is so akin to Carhart's that it bears special remark.  Drs. Crist and Williams acknowledged the use of the phrase "gobbet of meat" to describe those little ones killed in abortions.

What is it about men in whose hearts murder is born that they would tempt the gods, or the God?  What is it about men in whose hearts compassion dies aborning that they would make meat of men?  This then is the neat work of the Tantalus myth.  It warns us away from such inexplicable, such unjustifiable, evils.  It makes the eternal estate of those that defy the gods and that bloody their hands with the blood of our children too terrifying to contemplate.

The Clapper Tell ... The Boy Can't Lie Good

With the flourishing of Texas Hold Em Poker, and the propagation of tournaments being televised, we've all had the chance to learn a bit about the game, the strategy and the tactics.  We all know, now, about the importance of learning the "tell" of each player at the table.

The "tell" is that involuntary action or posturing -- body language -- that indicates the state of mind of the player.

I watched Director Clapper's testimony before the Senate.

For your convenience, I have circled the gesticulation associated with the only known LIE told by Clapper on that occasion.

So, if you find yourself in a conversation with Director Clapper, and he begins furiously scratching his head, check for mosquitoes, or watch out for the flying lies!

Clap On! Clap Off! Clap On, Clap Off, James Clapper! Liar's Time to Exit

There is no end of lying in Washington.

Glenn Beck recently highlighted the Obamalies website, which catalogs a series of lies from this administration's father of lies, Barry Slewfoot, er Soetoro here.

As the scandals multiply, as the coverups spread, as Obama draws down in a Jim Bakker style protective fetal mode of suspicion, denial, shifted blame, and obfuscation, no doubt the Obamalies website will become inundated with weekly, then daily, then hourly and finally minutely lie updates.  Enjoy the read here.

In the face of the furious frenzy of falsifications, Congress seems to have adopted the advice of erstwhile Texas gubernatorial candidate Clayton Williams, whose 1990 run for Texas governor was helped into a grave of his tongue's own digging when he remarked that if a rape was inevitable, a woman should relax and enjoy it.

Congress may be working hard behind the scenes to bring these lies and lying liars who tell them to bar.  I doubt it.  For example, all signs indicate that the House Republicans are being warned off Benghazi by Boehner, which, if true, is a boner in itself, Boehner's biggest boner, in all likelihood.  In any event, it is doubtful the Democratic Party controlled Senate is likely to take action on one of the lately uncovered big boners of a lie, but why not hold out hope.

What lie, you ask?

The whopper served up to the Senate Intelligence Committee by James Clapper, the Director of National Intelligence. 

The deets are set out, among other places, in a recent Hot Air Blog here, relying on a heads up from Instapundit here, after a nod to the problem in The Hill here.  The essence is this:

While testifying before the Senate Intelligence Committee, Clapper was asked quite directly whether the NSA was collecting data on large numbers of Americans.  He gave a firm and clear, "No," in response.  Okay.  All well and good, he supposes.

Then along comes the pesky Guardian article (given wings by information from Booz Allen Hamilton employee Edward Snowden) revealing a broad sweep of American domestic telephony on the Verizon network by the Obama administration.

Given the opportunity to clarify (clarify is Beltway blather for explain your previous lie), Director Clapper chose the only obvious course that ever appears to a liar, he doubled down for deceit.  This time, where he had been asked, and had answered no, on whether the National Security Agency was collecting data on millions of American, he went for the obfuscatory clarification.

Here, as reported on the National Journal website, is Director Clapper's clarification:

"Director of National Intelligence James Clapper said Thursday that he stood by what he told Sen. Ron Wyden, D-Ore., in March when he said that the National Security Agency does not "wittingly" collect data on millions of Americans.

"What I said was, the NSA does not voyeuristically pore through U.S. citizens' e-mails. I stand by that," Clapper told National Journal in a telephone interview."

Pardon me?

Here, again, is the exchange between Senator Ron Wyden and Clapper:

"Sen. Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Director Clapper: No sir.  It does not. Not wittingly. There are cases where they could inadvertantly perhaps collect, but not wittingly."

You can watch this exchange here (if you do, advance in to the two hour, eight minute mark, and you will find the question and answer).

So, now, what did Clapper say:

(a)  The NSA does not collect any type of data at all on millions or hundreds of millions of Americans

or

(b)  The NSA does not voyeuristically pore through U.S. citizens' emails?

While I wait for your answer I'll play the obligatory quiz show theme music, which you can listen to here.

Yes, you can clap on.  You can clap off.  But with the Clapper and National Intelligence, we will all be in the dark about the extent of domestic surveillance.  Time to clap off Clapper.

An Apology for Tyranny: How One Evangelical Conservative Legal Group Contributed to Liberty's Loss

As I mentioned the other day, there is responsibility to be assigned for the massive constitutional violations of privacy and liberty uncloaked this week, the logging of billions and billions of phone records, the PRISM program and related adventures in domestic surveillance.  And there is responsibility that flows back to Bush/Ashcroft and the Patriot Act.  And there is responsibility that flows back to the leadership of conservative and evangelical Christian groups that should have opposed the surrender, in 2001, of liberty in the name of obtaining security.

But now I want to back up my assertion by directing you to the October 2001 "Open Letter" of Jay Sekulow, Chief Counsel of the ACLJ.  There, Sekulow baptizes the maiden voyage of this government intrusion, giving my former employer's blessing to what became the Patriot Act.

In the "Open Letter," Sekulow stakes the claim that the legislation is constitutional, and asserts that the conclusion was supported by Senior Staff.

This was not true at the time that it was promoted to the conservative and evangelical community in October 2001.  "Senior Staff," of which I was one, raised serious questions and objections to the legislative proposal at the time that it was discussed with us.  Truth be told, the ACLJ's support for the act was a fait accompli by the time that consultation was had.

It was unsound -- then -- to support the arrogation of power by the Executive Branch, and to support the derogation of individual liberties.

To my own shame, I kept silence with the notion of keeping my job.  Even when the deleterious impact was reflected in greater and greater encroachments on the exercise of well-established constitutional rights (such as through the creation and maintenance of speech free zones in the name of providing security to "protected persons"), and I should have criticized the security crazed and liberty loathing sense of the Bush administration's policies, I kept silent within the ACLJ, while strenuously litigating for the rights of clients, such as Reverend Patrick Mahoney, to conduct prayer vigils and demonstrations in close proximity to events involving the President, Supreme Court justices, etc.

Now those policies have grown up under the nurture and care of the Kenyan, but the seeds should never have been planted by Bush and Ashcroft, nor watered with the praise of the ACLJ.

Accountability and Uncomfortability

I guess, unless you are a true stooge of the Obama administration, you are shocked and angered at the collection of Verizon network records, being conducted on the grand scale by Obama's Department of Justice under the thin skin of a Foreign Intelligence Surveillance Act order.

If you are angered, welcome to the club.

The National Journal is angered.

The New York Times is angered.

The Atlantic is angered.

Piers Morgan is angered.

Get the point?

Except stooges -- Lindsey "Light in the Loafers of Liberty" Graham and his ilk -- we all know that Obama's sweeping sweep sweeps too far.

Maybe, finally, the Republican led House of Representatives will exhibit the manly firmness of a resolute legislature by investigating the Administration via select committees ... it asks too much to hope that Boehner & Co. will craft articles of impeachment in response to the Administration's tyrannical excess.

But, and this is an important but, do not think the job is done by searching out Obama's toadies and seeking to affix all responsibility on them for the rape of the Fourth Amendment.  To fully excise the tumor against liberty, we have to follow the cancer back to its birth in the fear generated by the September 11 terror attacks.  In that long view, an honest appraisal indicts then-President Bush, that Congress and its paramours for making this all so easy with the Patriot Act and the sacrifices of liberties then in the name of providing security for which so many desperately craved.

When I served as Senior Counsel with the ACLJ, I was thunderstruck when none of the organization's senior attorneys -- seasoned counsel with decades of constitutional law practice between them -- were NOT consulted before the organization loaned its name and support to the Patriot Act.

Thus began the rape and pillage of our rights to privacy, respect for constitutional rights and liberties, with the blessing of America's leading religious liberties nonprofit.

Today, if you are thunderstruck with the present administration's excesses, you should not only hold it accountable, but should seek out those that stood this monster up and welcomed it to the table. When you do, you will ask my former employer whether the security it craved was worth the liberty we lost.

Blame Obama, But Remember Verizon Is Playing Along

See Tyranny and Dictatorial Tendencies?