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!