A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell

62 Pages Posted: 28 Aug 2017

See all articles by David Herzig

David Herzig

Ernst & Young; Valparaiso University Law School

Samuel D. Brunson

Loyola University Chicago School of Law

Date Written: August 25, 2017

Abstract

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of the law.” Constitutional law scholars, such as Laurence Tribe, are advocating that faith groups might lose their status, citing that this decision is the dawning of a new era of constitutional doctrine in which fundamental public policy will have a more broad application.

Regardless of whether Obergefell marks a shift in fundamental public policy, that shift will happen at some point. The problem is, under the current diachronic fundamental-public-policy regime, tax-exempt organizations have no way to know, ex ante, what will violate a fundamental public policy. We believe that the purpose of the fundamental-public-policy requirement is to discourage bad behavior in advance, rather than merely to punish it after it occurs. As a result, we believe that the government should clearly delineate a manner for determining what constitutes a fundamental public policy. We recommend three safe harbor regimes that would allow religiously affiliated tax-exempt organizations to know what kinds of discrimination are incompatible with tax exemption. Tying the definition of fundamental public policy to strict scrutiny, to the Civil Rights Act, or to equal protection allows a tax-exempt entity to ensure compliance, ex post. In the end, though, we believe that the flexibility attendant to equal protection, mixed with the nimbleness that the Treasury Department would enjoy in crafting a blacklist of prohibited discrimination, would provide the best and most effective safe harbor regime.

Keywords: tax, Obergefell, religious tax exemptions, public policy, tax-exempt organizations

Suggested Citation

Herzig, David and Brunson, Samuel D., A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell (August 25, 2017). Indiana Law Journal, Forthcoming; Valparaiso University Legal Studies Research Paper No. 17-1. Available at SSRN: https://ssrn.com/abstract=3026370

David Herzig (Contact Author)

Ernst & Young ( email )

710 Bausch and Lomb Pl
Rochester, NY 14604
United States

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
219-465-7809 (Phone)
219-465-7872 (Fax)

HOME PAGE: http://www.valpo.edu/law

Samuel D. Brunson

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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