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By what must be a rather extraordinary coincidence, the question that “nobody was asking” just a few short years ago has in the last couple of days burst dramatically onto the scene: Should churches that refuse to marry same-sex couples be stripped of their nonprofit status? At Fusion, Felix Salmon makes the case that they should. “Now that the US government formally recognizes marriage equality as a fundamental right,” Salmon recommends, “it really shouldn’t skew the tax code so as to give millions of dollars in tax breaks to groups which remain steadfastly bigoted on the subject.”


Underscoring his central implication — that this is a settled matter and that it is time to bayonet the dissenters — Salmon submits bluntly that “if your organization does not support the right of gay men and women to marry, then the government should be very clear that you’re in the wrong” and “should certainly not bend over backwards to give you the privilege of tax exemption.” Certainly “any religious organization is entirely free to espouse whatever crazy views it likes,” he concedes magnanimously. “But when those views are fanatical and hurtful . . . it makes perfect sense for our elected representatives to register their disapproval by abolishing the tax exemption for organizations who cling to narrow-minded and anachronistic views.” Thus was another question raised: “Can you disagree with the state and remain an approved nonprofit?”

To Salmon’s credit, he is at least intellectually consistent. Ideally, he writes, he would “abolish tax exemption for all religious organizations, whether they support gay marriage or not.” In fact, he confirms on Twitter, if he had a magic wand he’d “abolish ALL tax exemptions and deductions” and thereby “force all subsidies to be explicit.”


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Nevertheless, because most people are unlikely to get on board with this “drastic” position, Salmon concludes that it is “at the very least”

entirely right and proper for the state to say to a church that if you want to thumb your nose at a fundamental right which is held by all Americans, then we are not going to privilege you with tax-free status. We’ll let you practice your bigotry, at least within the confines of your own church. But we’re not about to reward you for doing so.


That’s quite the “very least.”

There are a good number of obvious problems with this idea, not the least of which is that it is an open invitation to unconstitutional viewpoint discrimination. If we are to have such a thing as a “nonprofit” group, the federal government surely cannot decide who is eligible and who is not on the basis of whether they happen to agree with the present constitutional order. Not only would such an arrangement be hideously unstable — the Court does change its mind from time to time, after all — but it would merely alter, rather than abolish, the alleged problem, which is that certain institutions are being “rewarded” for their politics. “You don’t have to pay taxes if you agree with the status quo” is not a good look.

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The practical questions abound. Which organizations would be favored? Which rights would be deemed too precious to invite criticism? And how would we decide? I accept that Felix Salmon’s proposal is a holistic one. But not everybody’s is. Actions are one thing. But how, one wonders, would we determine which views are beyond the pale? If our standard should “at least” be that institutional opposition to a “fundamental right which is held by all Americans” should deprive an organization of its tax-exempt status, we will need to do away with almost all politically minded nonprofits. That would be a radical step indeed. It is an indisputable fact that many nonprofit outfits are dead set against the infamous Citizens United decision, and hope to see it overturned. Other groups, such as the tax-exempt Violence Policy Center , are vehemently opposed to the rulings in D.C. v. Heller and McDonald v. Chicago, and would not only like to see them reversed, but aspires to help usher in a nationwide handgun ban afterwards — in other words, to overturn a right that has obtained in one form or another in America since the late 17th century, and which is explicitly enumerated within the nation’s founding charter.

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It is not just single-issue outfits. Within the non-profit archipelago there sits a whole host of magazines, opinion generators, and religious charities — almost all of which take strong positions on what the Constitution means and how the Court should interpret it, and almost all of which could be accused of conspiring to “cling to narrow-minded and anachronistic views” and to “espouse whatever crazy” or “fanatical” or “hurtful” views they like. If, as Salmon argues, it is flatly wrong to “reward” churches for opposing basic constitutional rights or for saying things that our thoroughly modern arbiters of taste find retrograde, surely it is wrong to “reward” non-religious organizations for doing the same? Mother Jones, the product of a 501(c)(3), not only wants to overturn part of the First Amendment, but has published a “DIY Guide” to doing so. Should it be stripped of its status? On the other side of the aisle, the Heritage Foundation, also a non-profit, opposes the decision in Roe v. Wade, which, until such time as it is altered or rendered moot, protects abortion as a “fundamental right which is held by all Americans.” Should it be removed from the rolls because its governing board considers that Justice Blackmun erred in 1973?

Perhaps we might leave Pandora with an intact box for five minutes? At the very least.