Shortly before the Supreme Court decision in Obergefell v. Hodge, legalizing same-sex marriage in all states, Senator Mike Lee of Utah introduced the First Amendment Defense Act (FADA). The FADA would protect religious institutions that did not support same-sex marriage to maintain both their Christian beliefs and, of course, their tax exemptions. It seems that Senator Mike Lee had anticipated the Obergefell v. Hodge decision, as its framework mirrors the many court decisions that outlawed racial discrimination in the United States. Only decades ago, private religious institutions relied on biblical text as reasoning for constructing racially discriminatory policies, which in turn led to the IRS revoking their tax exemptions. In a 1983 suit filed against a fundamentalist Christian school, Bob Jones University, the court ruled that a school could lose tax-exempt status if its policies violated “fundamental national public policy.” To this day, the court’s “fundamental national public policy” defense has not been extended for discriminating on the basis of sexual orientation, but someday it could be, and I believe that we are morally bound to extend this protection to LGBT students. Senator Lee’s preventative measure of introducing the FADA is not overreaching considering precedent cases that have favored public policy over the claims of religious freedom; however, his solution is wrong. Rather than attempting to rescue tax-exempt status for organizations and universities that do not agree with settled public policy on matters of race or sexuality, we must take a more profound step to protect individuals against discrimination in the name of religion. It’s time to eradicate, or significantly reduce, their tax-exempt statuses.

In order for an institution to qualify for a tax-exempt status, the Internal Revenue Code provides,

“Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition. . .,    or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation. . ., and which does not participate in, or intervene in. . ., any political campaign on behalf of any candidate for public office.”- I.R.C. §§501(a), (c)(3).

Subsequent to the court decision in Brown v. Board of Education, segregation in public schools was deemed unconstitutional as it violated the equal protection clause of the Fourteenth Amendment. Consequently, the court decision triggered an impetus in the formation of many white private schools. White students and parents who opposed integrated schools, primarily in the south, sent their children to private schools in which most of them were religiously affiliated and held a tax-exempt status. In order to preserve segregation in the classroom, religious private institutions first denied admissions to black students. Any qualified private school that engaged in racially discriminatory practices could obtain tax-exempt status, according to IRS policy, if it did not receive aid from a State or one of its political subdivisions whereby its operation was in violation of the Constitution or existing Federal law. However, the constitutionality of the tax-exemption to legalize racial discrimination was challenged and subsequently outlawed after 1970 in Green v. Connelly. In efforts to contest the continuation of federal support of racial discrimination under the IRS policy, black parents and their minor children attending Mississippi public schools filed a class action suit on May 21, 1969, to prohibit Federal tax exemptions to private schools in Mississippi that refused admission to black students based on their race or color. In Green, the court ruled in favor of the plaintiffs and granted injunctions to prohibit the IRS from issuing tax exemptions to schools that maintained racially discriminatory policies. Shortly after the ruling, the IRS released a statement to the news declaring that, “it can no longer legally justify allowing tax-exempt status to private schools which practice racial discrimination nor can it treat gifts to such schools as charitable deductions for income tax purposes.”

Subsequent to Green, the IRS notified private religious schools, one of them, Bob Jones University of their new policy. Consequently, Bob Jones lost its nonprofit tax exemption after an IRS investigation in 1976 found that it was practicing racial discrimination with a ban on interracial dating. In Bob Jones University v. United States, the school fought this policy all the way up to Supreme Court arguing that stripping away their tax exemption status was a violation of the establishment clause of the first amendment and that their interracial dating ban was not discriminatory because the rule applied to all students of all races. After extensive litigation, the U.S. Supreme Court in 1982 upheld the IRS’s decision and stated that the interest of the states was to eradicate racial discrimination, therefore trumping Bob Jones’ first amendment right to discriminate. Citing Loving v. Virginia, the Supreme Court ruled that even though the interracial dating ban applied to all students of all races, it was still discriminatory because the mere condition of race in enforcing behavior or policy was unconstitutional. In 2000, Bob Jones dropped its interracial dating ban and later apologized for practicing racial discrimination. Afterward, the institution became eligible to receive federal financial aid in 2006 and recently announced that it will be regaining its tax-exempt status on March 1st, 2017.

However, if a citizen, or class of citizens, decides to bring a suit against the IRS similar to Green, Bob Jones may again be at risk of losing its tax-exempt status for their policies that ban same-sex dating. Just as the Supreme Court held in Loving v. Virginia that laws prohibiting interracial marriage violated the Equal Protection Clause of the Fourteenth amendment, the Supreme Court held in Obergefell v. Hodges that laws banning same-sex marriage were unconstitutional for the same reason, also citing Loving as precedent. In analyzing the court’s decision, when Bob Jones lost its suit for their tax-exempt status in 1982, the reference to Loving serves as an indicator that the court is determined to eradicate all forms of discrimination in all institutions. As the landmark cases outlawing racial and same-sex discrimination parallel one another in Loving and Obergefell, Bob Jones, as well as other religious universities with anti-LGBT policies, should forfeit their tax exempt statuses in accordance with the Supreme Court’s legalization of same-sex marriage.

In the Supreme Court’s oral argument of Obergefell, Justice Alito identified the parallels to Loving and anticipated a public policy question regarding the backlash that would manifest in religious institutions that opposed the decision. Justice Alito posed to Solicitor General Donald Verrilli, “In the Bob Jones case, the court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?” Verrilli’s response indicated a sense of uncertainty in balancing religious exemptions within the IRS, “it’s certainly going to be an issue. I don’t deny that.”  In the weeks following the Supreme Court’s ruling in Obergefell, several religious organizations expressed concern that the IRS may revoke their tax-exempt status if they do not compromise their religious views on marriage. Specifically, Christian colleges and universities, in particular, have struggled to amend their campus housing policies to accommodate same-sex couples in fear that they would be stepping away from their Christian mission. In response to the concerns expressed by Christian universities weeks after the ruling of Obergefell, the Senate held a hearing on July 29, 2015. IRS Commissioner John Koskinen gave testimony that he would ensure the IRS will not only protect the tax-exempt status of Christian colleges and universities but also their right to not make accommodations and policies for same-sex marriages. Commissioner Koskinen stated, “At this time, there is no basis for us [The IRS] to revisit tax-exempt status on that grounds. We will continue, obviously, to ensure that those who enjoy tax-exempt status are still doing the work they said they were going to do. But that exam and those reviews will continue as they always have.” Although the anti-LGBT policies of Christian schools have not yet been challenged in the Supreme Court since Obergefell, the risk of losing their tax-exempt status is still a possibility in the future. Although Mr. Koskinen ensured the protection of religious universities in contrast to Obergefell, his assessment is consistent with a statement the IRS released to the media in July (as reported in the Exempt Organizations Tax Journal, 2015-139) regarding the impact of the same-sex marriage case on the tax-exempt status of religious organizations: “The IRS does not intend to change the standards that it applies to section 501(c)(3) organizations by reason of the Obergefell decision.”  However, in the current Trump administration, the FADA has not been struck down and still provides an alternate route for religious universities to discriminate if the bill is passed.

The language of student handbook policies within Christian universities raises an ethical concern to the treatment and well-being of young students who may be questioning their sexual identity. Religious universities are at conflict with the divergence of their Christian mission and federal law protecting and recognizing the marriage of same-sex couples, thus imposing a risk for discriminatory treatment in the name of religious liberty. Currently, Bob Jones University has codified prohibitions on transgender identities and sexual relations outside of heterosexual marriage of the Christian variety. For example, the Bob Jones’ student handbook says that the Christian Bible “names as sinful and prohibits any form of sexual activity between persons of the same sex.” The university states that it expects all employees and students to abide by cited biblical statements on sexuality and gender identity, and, as a result, poses the risk that homosexual behavior could be used to penalize or expel students and faculty. Despite concerns raised by many students and alumni, the disparate treatment of gay and transgender students is supported by many parents and attendees of Bob Jones, expressing deep conviction that the school’s policies are in line with the fundamentalist Christian mission. Nonetheless, Bob Jones, which is located in Greenville, South Carolina, and enrolls 3,000 students, continues to receive federal aid dollars amounting to nearly $4.7 million from Pell Grants and $6.1 million in federal loans. At the 2016 Republican National Convention, the GOP platform unveiled that federal funding risks little chance of being cut over Title IX violations, thus providing reassurance to private religious universities in continuing to uphold their policies.

I argue that both the anti-LGBT policies of religious universities and their consequential violation of federal law under Title IX are adequate reasons for the IRS to revoke their tax-exempt status. In 2014, the Obama administration released a guideline in directing universities how to comply with Title IX and new interpretations of the categories protected by discrimination. Obama stated in the recommendation that sexual orientation, gender stereotyping, and transgender discrimination are all transgression protected under the umbrella of Title IX. According to federal statute, if an institution is found to have violated Title IX then they are not only subject to losing federal funding, but they are also at risk of losing their tax-exempt status from the IRS. Due to significant economic implications, many universities receiving federal funding must comply with Title IX and acknowledge any discriminatory policies are damaging to higher education and the school’s brand.

Shane Windmeyer, executive director of Campus Pride, which advocates on behalf of gay, lesbian and transgender students said Bob Jones should face consequences for its stance on LGBT issues. “Bob Jones University violates students’ Title IX rights all the time, and they have not applied for an exemption to do so,” Windmeyer said via email, adding that the university faces a possible threat from “students who plan to challenge the university’s educational accreditation with accreditation agencies, as a result of harmful, discriminatory practices.” Camille Kaminski Lewis is a Bob Jones alumna and former faculty member at the university. When asked if LGBT students face challenges at Bob Jones, she responded, “Oh, Lord, yes.” Lewis, who left the university in 2007, reported that several students had been expelled over the years due to their sexual orientation. The climate for LGBT students at Bob Jones is “overwhelming scrutiny and always looking over your shoulder,” she said, adding that there’s “no chance to relax and just learn.”

Previous Supreme Court and lower federal court decisions remain undisputed that the eradication of racial discrimination, particularly in the area of education, is a compelling governmental interest of the highest order. The national policy outlawing racial discrimination is embodied in various Federal statutes and Civil War amendments, providing justification to prohibit any laws causing disparate impact among the races. To allow tax-exempt status to racially discriminatory private schools, whether religious or nonsectarian, would be contrary to the furtherance of that constitutional objective. InterVarsity Christian fellowship, one of the largest evangelical Christian organizations on college campuses, has recently undergone controversy for its November 2016 policy change that demands any of its staff leaders that support gay marriage or are ‘gay-affirming’ must leave the organization (Dias). Ministers of InterVarsity explain that although InterVarsity will extend membership to LGBT Ministers, they must vow to practice permanent celibacy, refrain from any intimate relationship, and condemn their natural attraction to the same-sex, unlike their heterosexual counterparts who can date the opposite sex and engage in sexual conduct after marriage. Similar to Bob Jones University, InterVarsity reasons that the legalization of same-sex marriage does not change their membership leniency. Although InterVarsity interprets Biblical scripture to condemn homosexuality, the organization has realigned Biblical scripture to accept the leadership roles of women and multi-ethnic races, reflecting the protected classes of gender and race that are recognized by the court.

The culture of reinterpretation and integration of a progressing civil law into biblical text not only undermines the religion of Christianity but also reflects a dangerous truth that “Christians have not always had it right“. At one time in our history, slavery was legal and authenticated a backlash against the African American race through segregation and bans on interracial marriage. Although now seen as egregious acts against humanity, it is important to recognize that religion not only endorsed but also claimed this discrimination was at the crux of their moral establishment. Drawing parallels from racial discrimination to sexual orientation discrimination, the church continues to reevaluate its religious beliefs when their federal aid is in jeopardy in the court of law.