Some things Jana Riess gets wrong about the Church and religious freedom

I like and respect Jana Riess a great deal, but she has a blog post up on religious freedom in which she makes a number of mistaken claims that are worth pointing out.

First, she suggests that the Church´s commitment to religious freedom is shallow or poorly thought out. After all, she says, wouldn´t a robust support for religious freedom include minority religions such Rastafarians? Yes it would. However, since 1990 at least the Church has vigorously supported legislation that allows Rastafarians and other minority religions to challenge laws burdening their practices. The Religious Freedom Restoration Act, which the Church helped to pass, was in direct response to Supreme Court opinion holding that the State of Oregon could criminalize the use of peyote by Native Americans.

Jana also claims that “The LDS Church has lobbied hard for the right of conservative religious persons – like, say, those who are members of the LDS Church! – to refuse [service in public] accommodations [i.e. private businesses] in the name of religious freedom.” This is not true. Far from having “lobbied hard” on this issue, to my knowledge the Church has not lobbied at all on it. As she notes, it has supported employment protections and housing protections for homosexuals. The Utah law it supported doesn´t address public accommodations, but it quite pointedly provides no exemption for individual landlords with religious objections to homosexuality allowing them to discriminate in housing. The same is true of individual religious employers. The exemptions in that law apply only to religious institutions.

She is quite right that religious freedom is a difficult concept requiring careful thought. She is wrong to suggest that Mormons haven’t been thinking carefully about these things. They have. For twenty years at least. She might want to look at the multiple books and articles on these issues by LDS scholars like Brett Scharffs, Fred Gedicks, Steven D. Smith, or Cole Durham. Or talk with experience LDS litigators dealing with such issues such as Hannah Smith or Gene Schaerr.

51 comments for “Some things Jana Riess gets wrong about the Church and religious freedom

  1. N. W. Clerk
    July 9, 2015 at 9:22 am

    The Church’s summary of the Utah legislation says that “Landlords owning fewer than four rental units may choose their tenants on the basis of the landlord’s personal preferences.”

  2. Jax
    July 9, 2015 at 9:33 am

    Every landlord should be able to choose tenants according to their own personal preferences.

    Wouldn’t you WANT to know if your potential landlord is a racist? or sexist? It’d make it much easier to avoid the stress of dealing with A-holes if we’d allow them to show their true colors, right?

  3. Nate
    July 9, 2015 at 9:35 am

    N.W. Clerk: The small landlord exemption is not a religious exemption. It is an exemption for small time landlords of a kind that is actually pretty common in anti-discrimination laws.

  4. Mark B.
    July 9, 2015 at 9:42 am

    The exemption of small landlords/employers is a standard part of anti-discrimination legislation. As to hotels and motels and roominghouses, it exempts “an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence.”

    Even New York City exempts rooms in owner-occupied housing from its anti-discrimination laws.

    In other words, N.W. Clerk, there’s nothing to see there. Step along.

  5. Mark B.
    July 9, 2015 at 9:43 am

    Oops. An editing error left out the antecedent of “it”–it was the Civil Rights Act of 1964.

  6. July 9, 2015 at 10:31 am

    Nate, so what do you think of the “12 religious freedom grenades” that an LDS litigator says the Supreme Court has thrown our way in its recent decision? Here’s the Deseret News story:

    The story summarizes the litigator’s claimed threats to religious freedom as follows: “Acting consistently with their teachings on traditional marriage could threaten churches’ tax-exempt status, religious schools’ housing policies, accreditation, government contracts and employment and churches’ ability to have marriages recognized.”

    The tax exemption threat is simply not remotely credible. As a matter of public policy, we don’t even want county clerks or state judges who refuse to follow the law based on their claimed personal or religious views, so a government employment limitation is actually a good thing, not a threat to religious freedom. And as I noted in my review of the recent First Presidency Letter and Statement, the Church is more worried about its own bishops performing gay marriages that it is about the government meddling with religious officials performing traditional marriages. It is a hundred times more likely that LDS leaders would unilaterally prohibit LDS bishops from performing traditional marriages (to avoid the possibility that one or two might perform gay marriages) than that the state would either revoke the power delegated to religious officials to perform marriages recognized by the state or require religious officials to perform gay marriages against their will. It’s a church governance issue, not a religious freedom issue.

    These “religious freedom hand grenades” seem more like the kind of arguments a political operator uses to stir up the base and generate more contributions for the next campaign than careful legal thinking or even reasonable speculation.

  7. N. W. Clerk
    July 9, 2015 at 10:40 am

    So, Nate and Mark B., do you think the Church was being disingenuous when it listed the 4-unit provision as a response to the question:

    “10. Does this legislation protect the religious liberty and rights of conscience of individuals and families, or does it just cover the Church and its affiliates?”

  8. ABM
    July 9, 2015 at 11:49 am


    You should acquaint yourself with Rod Dreher’s law of merited impossibility: “It will never happen and when it does, you people will deserve it.”

    It is easy to dismiss these fears as unfounded, but social conservatives have a pretty good track record of predicting these consequences. Scalia predicted the gay marriage ruling and reasoning in Lawrence vs. Texas and was mocked for it until a couple of years ago. All we are doing is following the logic that is being employed now to its end. Don’t worry, society will catch up and in 5 or 10 years and you’ll probably see a lot of these consequences unfolding. But by that time it will make sense and just logically follow from the narratives of the time.

  9. July 9, 2015 at 12:04 pm

    “generate more contributions for the next campaign” — this is the key to understanding what’s going on.

  10. Nate
    July 9, 2015 at 12:16 pm

    Dave: In the short term, I don’t think that any of Gene’s predictions will happen. In the medium term, dust ups with accreditors and over government contracts strike me as the most plausible. I think there is no danger of churches having to perform marriages. You might see a move toward civil marriage only a la continental Europe but it strikes me as unlikely. On taxes, I am doubtful unless there is considerable political support. I don’t think courts would do it on their own. So I’d say I’m concerned about a third of the things that Gene is concerned about.

  11. July 9, 2015 at 1:09 pm

    I totally agree with Dave: The “Twelve Hand Grenades”, aren’t. They’re mostly fear and paranoia on shaky foundations, with a couple of “Well, MAYBE” items in there. As has been said elsewhere, as long as the Westboro Baptist Church and Scientology retain their tax-exempt status, NO other church need worry.

    There’s also some fear-mongering going around about what’s supposedly happening in Canada, complaining that religious ministers and others are being muzzled and having their freedom of speech taken away, etc. I hope that Schaerr and others aren’t relying on that information, because it’s 95% BS. I’m a Canadian, I’m back living in Canada after living in the US for 2008-2014, I’ve followed the entire same-sex marriage issue very closely here since 2000, and trust me, the sky is NOT falling here in Canada just because we legalised same-sex marriage in 2003-05.

    Finally, if Americans are so worried about the possibility of churches being forced to perform same-sex marriage when it goes against their beliefs, they should check out Section 3 and Section 3.1 of Canada’s 2005 Civil Marriage Act. Those give very explicit protections for religious officials who do not wish to perform same-sex marriage because it goes against their beliefs. Legislators in all 50 states should copy those sections, Americanise them, and then pass them into their marriage laws. The text is available at,

  12. Nate Oman
    July 9, 2015 at 1:19 pm

    The Trinity law school accreditation case in Canada suggests that it’s not crazy to suppose that university accreditors would refuse to accredit a school based on standards of sexual conduct rooted in religious belief. That said, I agree that there is no chance of churches being forced to perform SSM weddings nor is there political support for yanking tax exempt status.

  13. July 9, 2015 at 1:40 pm

    I think the Trinity Western law school debate is a very good one to have. In some ways, it has many parallels with the way businesses used to discriminate against black people (and often still do); if you enter a profession (or start a business), and you say “I’m not going to serve [some identifiable group of people] because ‘sincerely held religious beliefs.'” then should that be allowed in that profession and/or in the marketplace? For visible minorities like black people, most of us in North America have answered “No, that sort of discrimination is unacceptable, no matter what your ‘sincerely held religious beliefs’ say.” (And yes, MANY Americans and others used ‘sincerely held religious beliefs’ as justifications/excuses for Jim Crow.)

    So the debate now, not just among Canada’s provincial bar associations, but also with cases like a woman in a university program to become a counsellor/therapist saying she would never accept gay people as patients and then being excluded from that profession on that basis (not sure how that case turned out in the end, though), is a CRITICAL debate to have. I trust that we will all somehow end up in a place that respects EVERYONE’S rights appropriately, and as long as people in the debate can stay reasonable, stick to facts, and avoid BS and paranoia, I’m sure that is indeed what will happen.

  14. July 9, 2015 at 6:51 pm

    Wouldn’t all of those hand grenades have been just as plausible after the decision to allow multi race marriages, and if so did it ever happen? Did a church refuse to marry a mixed race couple and then the couple sue the church, forcing them to do it?

  15. ABM
    July 9, 2015 at 7:44 pm


    I think at least one of the differences you are ignoring between this circumstance and the mulit-race marriages is that our culture today, by and large, is much less friendly to religions and religious claims than in generations past. Given the demographics and perspectives of the millennial generation (of which I am a part), this is likely to only get worse in the coming years.

  16. jeff hoyt
    July 9, 2015 at 8:21 pm


    I believe the answer to your question is probably no, no church refused to marry an interracial couple and was subsequently sued.

    This time around a church will refuse, and will be sued. Then we will all have to wait to find out what Anthony Kennedy thinks. His language regarding religious freedom in his opinion was very narrow, so I would not want to hazard a guess.

  17. Chadwick
    July 9, 2015 at 11:40 pm

    Re ABM #16

    I think the real question we religious folks should be asking is “why is the culture less friendly toward religion today then say 30 years ago.” While there are a plethora of reasons, I think one very big reason is the way religion functions. As many of the recent posts have noted, there seems to be a lot of retrenchment going on. Just as children get frustrated when uppity parents say “because I said so” to any question involving the word why, so do people today when told by their church “because God said so” when there appears to be lacking support for such an assertion.

    People want compelling reasons for why we believe things, but we normally fail to give it to them. I think all churches need to sincerely show people there is nothing to be afraid of; that we can be great neighbors. And yet, from many posts I’ve read since the SCOTUS decision, perhaps there is something to be afraid of.

    When I read Jana Reiss blog post, I felt a sense of trying to perhaps overcorrect or overcompensate what I describe above. Whatever happened to all the moderates in the world anyway?

  18. Gene Schaerr
    July 10, 2015 at 12:02 am

    The analogy I used in my speech was not to a soldier deliberately throwing grenades at an enemy, but rather to a military accident that causes a bunch of grenades to get launched unintentionally. But regardless what one thinks of the analogy, the threats are all real. And whether they materialize will depend to a large extent on the vigor with which people and institutions of faith fight to keep them at bay. (And no, I’m not trying to generate campaign contributions for anyone.) Here for example is why people concerned about religious liberty should be concerned about each of the six “institutional” threats I mentioned:
    1. Commentators in the LGBT community have for years been calling for “Bob Jonesing” (i.e., yanking tax exemptions, a la the Bob Jones case) from any religious institutions that adhere to traditional views of homosexuality and marriage. Since the Obergefell decision, reasonably credible groups like Americans United for Separation of Church and State have publicly called for the denial of tax exemptions to religious colleges that adhere to those views. Those calls echo the observation of no less than the U.S. Solicitor General that the yanking of such exemptions “is going to be an issue” — and no one in the Administration has attempted to disavow that statement. Also, yanking tax exemptions — including churches’ tax exemptions — doesn’t require “political support”; it’s something a left-leaning administration could do unilaterally, at the stroke of a pen.
    2. Chief Justice Roberts mentioned the married student housing threat during the Obergefell argument, and again in his dissenting opinion, and none of the same-sex marriage advocates had a plausible response. Americans United has also called for measures forcing religious colleges to open their married student housing to marriage same-sex couples.
    3. Adverse accreditation actions are a clear and present threat, for reasons explained in some of the posts above. (If you doubt this, talk to the general counsel of any major religious college that seeks to adhere to traditional views of marriage and sexuality.)
    4. The Obama Administration has already weakened the religious exemption contained in the regulations (issued by the Labor Department) governing federal contracts, and in a way that a number of credible people have said could well pave the way to the denial of federal contracts to institutions that adhere to traditional positions on marriage and sexuality. And again, in response to left-leaning political pressure, that religious exemption could be revoked entirely, at the stroke of a presidential pen.
    5. As I explained in my speech, the risk of adverse employment actions under federal law is indeed remote; Title VII has an express religious exemption that was upheld in the Amos case in 1987. But a number of states do not have religious exemptions in their state employment statutes. And it is not at all far-fetched to suppose that courts in one of those states would hold (a) that the state statute requires all employers, including religious ones, to treat same-sex marriages the same as opposite-sex marriages for employment purposes, at least as to employees other than commissioned ministers, and (b) that the state’s interest in vindicating the new constitutional right to same-sex marriage outweighs whatever burden (a) imposes on the affected religious institutions.
    6. I agree with Nate and others that churches/pastors will almost certainly not be forced to perform same-sex marriages against their will; the First Amendment clearly prohibits that. The real threat, as Justice Scalia pointed out (without contradiction) during the Obergefell argument, and as I explained in my speech, is that some states may refuse to give legal effect to marriages by a clergyman who refuses to perform same-sex marriages on the same terms as opposite-sex marriages. That in turn would impose substantial burdens on couples choosing to be married by that clergyman, and in turn would lead some couples to be married elsewhere — perhaps foregoing a religious ceremony altogether.
    Again, these are threats, not certainties. And I hope none of them materializes — i.e., that each of these grenades lands harmlessly in an unpopulated desert. But that will depend in large part on the public’s willingness to press for preventative legislation and/or vote for political leaders committed to that end.
    Gene Schaerr

  19. July 10, 2015 at 12:56 am

    Gene, re: tax exemption: Obergefell does not move the ball in the least on that front. No institution has ever lost its exemption for discrimination on the basis of gender or religion, which are currently (and have been for a long time) protected classes.

    Is it impossible that a religiously-affiliated school would lose its exemption? Certainly it’s possible. Is it likely? Not at all—it’s the furthest thing from likely and, as such, isn’t particularly worth worrying about. Moreover, a left- (or right-)leaning administration cannot use the IRS to work its political will; Congress has established protections (both prophylactically and after-the-fact) to prevent Administration abuses.

  20. July 10, 2015 at 1:16 am

    Chadwick and ABM both say that today’s society is “less friendly” to religion. A, I don’t think that’s exactly an accurate characterization, and B, there are some Very Good Reasons why they would feel that way. Along with “white privilege”, which persists decades after the Civil Rights Movement, there is also a kind of “Christian privilege” that has persisted in America, which was much stronger half a century ago than it is now. The trick is, America is NOT “a Christian nation”, it was explicitly set up in the Constitution and Bill of Rights (with backing from the Declaration of Independence) as a SECULAR nation, with no “official state religion”. And while the concepts underlying the foundation of the United States have some origins in “Judaeo-Christian values”, they ALSO have origins in the Enlightenment, when people from Voltaire to Jefferson chose to rely on REASON for making decisions, and not just faith. Half a century ago, when “Christian privilege” was exerted in ways such as states having laws against certain sexual practices, or interracial marriage, there wasn’t any pushback, even though there should have been. NOW, however, public policy arguments that are based ONLY on religion are facing pushback, and rightfully so. In a secular no-official-religion nation, public policy should be based ONLY on reason, evidence, facts, data, and the need to protect the legitimate rights of all citizens. (Note: No one has a “right” not to be criticised. You put forward a belief, religious or otherwise, and if others think it’s bogus, they have a right to call you on it.) That’s why Prop 8 failed in the courts; the only reasons put forward in court against same-sex marriage were either based on bogus evidence, or were strictly “This is what we think God wants and doesn’t want,” which isn’t kosher in a republic run by the US Constitution.

    To sum up: Maybe in the past, various religious opinions didn’t receive much pushback from those who disagreed. Now they do. That doesn’t mean society is “less friendly” to religion, it means some members of society are exerting their freedom of expression to criticise those religious opinions, many of which deserve legitimate criticism. Maybe in the past, much law and public policy was implemented with only religious justifications, not acknowledging the rights of people who didn’t agree with those religious beliefs. Now, people are pushing back and standing up for their rights. “Freedom of religion” and “freedom of belief” includes “You can’t force me to live by your beliefs just because you think that’s what God wants.” “Christian privilege” in America is facing pushback and legitimate criticism; if that’s “less friendly”, so be it. “Christians” in America should look back over the decades and ask themselves “Hmmm, where did we stomp on the rights of others? And how should we make amends, rather than just whine about the pushback?”

  21. Wilfried
    July 10, 2015 at 1:38 am

    Wherever it reads “because they adhere to traditional positions on marriage and sexuality,” one should actually read “because they cannot accept as equals people who are different from them.”

  22. Brad L
    July 10, 2015 at 3:17 am

    Nate, you’re technically right about Jana’s post. Those are some fine points that she clearly didn’t think through. However, I tend to agree with her general gist that many LDS leaders and members 1) have been overreacting and are continuing to overreact about the potential loss of religious freedoms that legalizing gay marriage is somehow going to bring about (the general narrative I hear emanating from Mormondom on religious freedoms doesn’t really seem that well thought-through), and 2) really only seem to care about the LDS religion and perhaps some other religions that are similar to them (I mean, forget the religions who recognize gay marriage as consistent with God’s will, those have to be the last entities on the LDS leaders and members’ minds when they say the word “religion”). One of the greatest concerns that LDS leaders have is one that they are not overtly verbalizing, but is no doubt there, which is, the agitation for change among its own members on the issue of gay rights within the church. The “religious freedoms” shtick is a cop-out. They fearmonger about the potential losses of religious freedoms to rile up the rank and file and make them seem like victims (which they are not) for the purpose of keeping them on guard towards agitators within the ranks. I actually wonder if the leaders know darn well that they aren’t currently and most likely will not be facing any real losses of religious freedom because of court pressure over gay rights.

    As for society being less friendly to religion, those saying so need to qualify this and say traditional conservative religions. But even there I don’t think that’s necessarily true. The Westboro Baptist Church is tax-exempt.

  23. J Town
    July 10, 2015 at 8:58 am

    From Wilifried – Wherever it reads “because they adhere to traditional positions on marriage and sexuality,” one should actually read “because they cannot accept as equals people who are different from them.”

    It shouldn’t read that unless people have very poor reading comprehension skills. Please don’t tell me people actually believe this. I was under the impression that this argument was almost universally adopted as a rhetorical tactic. Because it’s blatantly and obviously false. Marriage is not a state of being, folks. It’s an action that people take. People are black or white, male or female. People GET married. So stop trying to equate all people being equal with all actions being equal. All actions aren’t all equal, they have never been equal, so please stop making such an ridiculously false argument.

  24. Steve Smit
    July 10, 2015 at 9:38 am

    On the possible denial of tax exempt status– I’ve discussed this possibility from time to time with other law professors for several years now, and the dismissive rationale seems always the same: “Sure, as a purely legal or analytical matter, the Bob Jones rationale easily could be extended to religious institutions that discriminate on the basis of sexual orientation. The IRS could do that. But it won’t, because there’s no political support for doing that.” (And in any case, the IRS, as we know, is an institution of unimpeachable integrity, pretty much impervious to politicization.)

    Seriously, in our current political climate, how reassuring is that position?

    As others have said, there’s no way to know for sure what will actually happen, and in any case that depends in part on whether people actually appreciate and resist the risks, rather than ignoring them. But if we’re think in terms of probabilities, this seems a likely scenario. The federal government or the IRS probably would be reluctant to deny tax exempt status to a large, powerful church like, say, the Catholic church. But there would be a lot of support– and it would generate little political opposition– if the government were to start by denying tax exempt status to some smaller, less powerful religious institution that is widely unpopular anyway. Do you think there are any of those around?

  25. gst
    July 10, 2015 at 11:19 am

    Quite apart from the substantive question of whether or to what extent Obergefell poses religious freedom problems, the suggestion that LDS religious freedom activists, scholars, and lawyers haven’t shown concern for the religious freedom of any other faith groups, including those with which it has strong disagreements, is just wrong. I know that Gene and others in his sphere have done work for Jewish prisoners, Seventh Day Adventist groups, Muslims, etc., to advance religious liberty generally. Jana Reiss ought to retract her claim.

  26. July 10, 2015 at 12:04 pm

    “but rather to a military accident that causes a bunch of grenades to get launched unintentionally”

    I hate when accidents cause a bunch of grenades to launch themselves!

  27. Josh Smith
    July 10, 2015 at 12:05 pm

    But the much narrower, fear-based definition of “religious freedom” that I keep seeing from LDS leaders and members alike — like the grenade-happy speaker quoted above — sounds more like “upholding the privilege of religious conservatives to oppose homosexuality wherever possible.”

    –Jana Riess

    This quote captures my thinking on this issue as well. I’ve been very skeptical of the current excitement about religious freedom from religious organizations opposed to same-sex marriage. What the timing says is, “We want to enjoy the benefits of a pluralistic society (please tolerate our eccentricities) but we still refuse to acknowledge that homosexuals are entitled to the rights enjoyed in a pluralistic society (their marriages are sin).” I suppose it’s the timing of the religious-freedom crusade that is triggering my skepticism.

    That being said, I am in the process of changing my tune, a bit. As I’ve peeled away some of the more extreme claims about religious persecution (see grenade launching analogies) I’ve seen that there are some genuine concerns. I’m in the process of sorting through these religious-freedom concerns.

    I share Jana Riess’s concerns, though. The LDS church has expended a lot of microphone time, a lot of good will, a lot of resources fighting same-sex marriage. The current zeal for religious freedom sounds a wee bit hypocritical: We demand rights while refusing the rights of others. The current zeal for religious freedom sounds a bit like a refusal to concede: We will oppose homosexuality wherever possible.

  28. J Town
    July 10, 2015 at 12:30 pm

    What right were homosexuals denied that they have now magically gained?

  29. zjg
    July 10, 2015 at 1:13 pm

    Steve Smith — Sam Brunson has written at length about this issue over at By Common Consent and elsewhere I think, and there’s more to the argument than just “There’s no political will for the IRS to challenge BYU’s tax-exempt status.” (I say “BYU” and not the church because I don’t think there’s any informed observer who seriously thinks that there is a significant threat to the church itself losing its tax-exempt status, although I’m certainly willing to be corrected on that point.) Brunson’s point is that the IRS would have to demonstrate that there is a fundamental federal public policy against LGBT discrimination that is both analogous to the federal public policy against racial discrimination and distinct from other types of discrimination, including gender, which haven’t served as a basis for the denial, let alone revocation, of tax-exempt status. So, I think the question is: what would have to happen for the IRS to establish the existence of such a policy? Given the history of race relations in the U.S., is it even possible for a federal public policy against LGBT discrimination ever to be analogous to the policy against racial discrimination? And of course, BYU, unlike Bob Jones University, wasn’t originally created to skirt that federal policy. So, anyway, there is a lot more to it than just political will. Not saying it couldn’t happen. But it seems unlikely. In any case, I commend to you Brunson’s thoughts on this, if you haven’t already read them.

  30. Josh Smith
    July 10, 2015 at 1:13 pm

    J Town,

    The right to marry and have their marriages recognized in every state.

    When deciding the impact of a decision it’s also a good idea to read the complaints of the individual petitioners. The decision will grant them, individually, the relief they sought. You’ll have to read the opinion (the “Fact” section I believe) to find out what they were seeking. If I were smarter I’d remember off the top of my head.

    (This is my last comment on your question, J Town. Agree or disagree with the Court’s opinion, it is what it is. I think this post is about religious liberty.)

  31. Ralph C. Hancock
    July 10, 2015 at 2:50 pm

    Religious freedom attorney Alexander Dushku here sees the crucial and reciprocal connection between law and culture. It is this nexus that will finally decide things, not legal technicalities (which are of course not to be despised).

  32. zjg
    July 10, 2015 at 3:22 pm

    Further to Ralph C. Hancock’s point, here’s another view, from a leading constitutional law scholar, suggesting that, with respect to the “culture-law interaction,” Obergefell is probably more like Brown than Roe:

    My great suspicion is that Klarman is right about this.

  33. Steve Smith
    July 10, 2015 at 5:14 pm

    Thanks for the reference, zjg. The Brunson essay seems mostly directed at the possibility of some group (like the Freedom from Religion Foundation) suing and forcing a reluctant IRS to withdraw tax exempt status from an institution like BYU. I agree that under those circumstances, the sorts of distinctions proposed might be successfully invoked in support of the IRS’s position.

    But is that the right issue to be asking about? I’m neither a politician nor a pundit, but I would think the much more worrisome possibility is that the government itself, or the IRS, will affirmatively decide to withdraw tax exempt status from some religious institutions. It would be simply false, I think, to say that nobody wants or proposes this; I attend academic conferences where respectable scholars urge such measures. Surely some groups, and some politicians, do and would strongly favor this, especially for marginal or unpopular religions. And in this case, the IRS would not have to demonstrate any of the things mentioned in the Brunson essay, or in your comment. The agency’s judgment would likely receive substantial deference from a reviewing court. And in fact, free exercise doctrine (which was unavailing in Bob Jones) has been considerably weakened in the intervening years.

    You can say that discrimination on grounds of sexual orientation isn’t really comparable to racial discrimination. And you will convince me. But since the campaign for SSM has been centrally driven precisely by the claim that these things are comparable, and that Obergefell is pretty much like Loving, I think it would be naive to suppose that this up-to-now impotent distinction will suddenly convert the relevant decision-makers.

    So in the end, it still pretty much boils down to: yes, the law would permit the government to withdraw tax-exempt status, but the government probably won’t do that. True, the IRS hasn’t really used the Bob Jones rationale much in the past. But in a politically volatile time when things are happening that would have been almost unimaginable just a few years ago (e.g. Obergefell), I have to say that I’m not reassured. More than that, I believe it’s simply irresponsible for people just to say, “Don’t worry; be happy; that could never happen.”

  34. zjg
    July 10, 2015 at 5:44 pm

    Fair enough, Steve Smith. I admit that any tea leaf reading in this area should be tempered by the fact that very few if any people predicted the swiftness that cultural views would change with respect to gay marriage.

  35. July 10, 2015 at 6:47 pm

    Perhaps God is upset that His church doesn’t contribute to the tax base that supports the government which allowed it to come about and ensures its religious freedom. Perhaps He’s also displeased with how Tithing donations are tax deductible and therefore He doesn’t consider it to be ‘real’ tithing. But the only way He can correct this is by using this issue to bring about change in the US.
    Who can say?
    It’s not like there’s a section in D&C where He reveals what tax exemptions He’d like His people have receive.

  36. Scott Roskelley
    July 10, 2015 at 9:02 pm

    I don’t see how exercising our religious rights to condemn same sex marriage or worrying how to craft a clever tax shelter now that the “double Irish” is unavailable for the Corporation of the Presiding Bishop and Corporation of the President helps to resolve the 7 unknowns concerning the exotic marriage networks Joseph Smith introduced into the world? Perhaps we should wait until the 2016 unveiling of the nauvoo council of fifty minutes to get Joseph’s view on government?

  37. Nate Oman
    July 11, 2015 at 3:49 am

    Please refrain from personal attacks on Jana or others. The management has deleted comments doing this.

  38. jeff hoyt
    July 11, 2015 at 10:22 am

    Not sure why you refrained from deleting Wilfried’s post at 22. Is it ok to disparage entire groups, versus individuals?

  39. Wilfried
    July 11, 2015 at 11:13 am

    jeff (39), my comment was meant to follow Gene Schaerr’s list of arguments where the phrase I mentioned is used (19).

    Yes, it is my opinion that people who reject same-sex marriage “because they adhere to traditional positions on marriage and sexuality,” are doing so “because they cannot accept as equals people who are different from them.” If they accepted them as equals, they would grant them the same privileges as they enjoy themselves.

    I hope that clarifies the context.

  40. Nate
    July 11, 2015 at 1:50 pm

    Wilfried: There are reasons that one might oppose same-sex marriage other than because one regards homosexuals as subhuman or one is unable to accept those that are different as equal. One may not find those reasons compelling, but that simply means that you believe that their arguments are mistaken. It is not necessary to ascribe to them odious beliefs that they may not in fact hold.

  41. jeff hoyt
    July 11, 2015 at 5:14 pm

    Thank you Nate. On the other hand, I do not want Wilfried’s comment deleted as it serves as compelling evidence of the lack of respect shown by one side of this issue.

  42. July 11, 2015 at 8:00 pm

    Steve Smith, although I make the assertions informally, in blog-ese, I’m saying more than just, The politics aren’t there (though, honestly, and especially in light of the kid gloves the IRS has always treated churches with—see its (non-)response to Pulpit Freedom Sunday, for example), especially post-Tea Party-gate.

    But you’re absolutely right: if that’s all there were, the political winds could change in five or ten years (or sometime).

    That’s not all there is, though: the whole law and context surrounding the public policy doctrine militate against its application to schools that discriminate against those who are in same-sex marriages. I don’t want to take this entirely on a tangent, but Bob Jones was preceded by 13 years of the IRS enforcing the public policy rule against private schools that discriminated against African-American students (essentially providing a mechanism to avoid desegregation). The history, law, and politics surrounding that decision (including the long history of segregated schools) don’t apply here.

    When the IRS revokes a racially-discriminatory school’s exemption, it has a long history, and it has been blessed by the Supreme Court. There are only three times that the IRS has denied an exemption (and it has never revoked an exemption) for public policy reasons that weren’t a school’s racial discrimination. Twice had to do with polygamy, and the IRS went to great lengths to explain that there had been over 100 years of federal policy against polygamy. The third was a group advocating decriminatlizing sex between minors and adults; I’m pretty sure that wasn’t a hard denial to make. (And again, they were denials, not revocations.)

    Finally, even a small church that had its exemption revoked would lead to tremendous amounts of litigation; I have no doubt the Beckett Fund or the ADF would represent the church pro bono. In the context of its serious underfunding, and in light of the fact that such a revocation would provide the federal government with very little additional revenue, the cost-benefit analysis weighs strongly against doing it, even if the IRS had ideologues who were dying to revoke some school’s exemption.

  43. Nathaniel
    July 11, 2015 at 8:52 pm

    What a powerful indictment of our church leaders, Wilfried.

  44. Wilfried
    July 12, 2015 at 6:40 am

    In these debates, my concern has always been the church in the world. A major problem remains the church’s image as cultish, intolerant, and racist. We were slowly improving. Then come the church’s media-reinforced efforts against marriage equality, also pertaining to non-members worldwide. Whatever its divine justification and validity for church members, that message is problematic, both in gay-supporting and in gay-reproving countries. I have discussed this in detail here. I need to continue to draw attention to this broader dimension. The church is more than the U.S.

    Nate (41), I agree that defenders of “traditional positions on marriage and sexuality” may have positive reasons to act, but somewhere it must always imply disapproval of marriage equality; hence, again in world perspective, the perception of their inability to “accept as equals people who are different from them.” The church’s racist past reinforces that perception. I did not mean to say that defenders of traditional marriage always regard “homosexuals as subhuman” or that they have “odious beliefs,” as you wrote. It does not help the conversation to reformulate viewpoints in much darker terms. But I recognize my sentence was compact, a swift reaction to Schaerr’s grenades, and prone to interpretation.

    Nathaniel (44), it’s so easy to proclaim that what a church member wrote is “a powerful indictment of our church leaders.” It’s a well-known tactic in the history of strict religions. Especially effective if based on one sentence. The Inquisition was a master at it. Countries with blasphemy laws continue the tradition. Jeff (42) is already happy to keep the sentence as “compelling evidence.” Time to relax, brethern?

  45. Mark B.
    July 12, 2015 at 8:24 am

    Or perhaps it’s just a failure to understand. I wonder if a little Atticus Finch wisdom might help:

    “If you just learn a single trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view… Until you climb inside of his skin and walk around in it.”

  46. The blogger formerly known as ECS
    July 12, 2015 at 11:21 am

    Homosexuals do not fit squarely into the Carolene Products footnote four – which is arguably why Romer, Goodridge and Lawrence were decided on purported rational basis(ish) grounds instead of intermediate or strict scrutiny. Indeed, white men are disproportionately represented as leaders in business and government and not an insubstantial number of these white men running our government and private businesses are gay.

    There is significant insidious latent racism in the U.S., which unfortunately doesn’t seem to be dissipating unlike the traditionally-held contempt for and discrimination against gays in U.S. culture. Given the power structures favoring white males (a significant minority of whom are gay) and social trends, discrimination against gays in any form is on its way out. I think Mormons would be hard pressed to prove that it is a core tenet of the Mormon religion to discriminate against gays – and any neutral law of general applicability would defeat this argument in anything but religious employment (i.e., the Hosanna Tabor and Amos cases).

  47. Nate
    July 12, 2015 at 5:23 pm

    “It does not help the conversation to reformulate viewpoints in much darker terms. ”

    Wilfried: I agree. Respectfully, however, in my opinionn this is exactly what you did in your comment. Indeed, you literally suggested that we replace the words that Gene did use with words that he did not use. Furthermore, the words you suggested that we put in his mouth were considerably “darker” than the words he did in fact use.

    Also, comparing one’s interlocutors to the Inquisition while calling for a lowering of the rhetorical stakes is flat out bizarre.

  48. Nate
    July 12, 2015 at 5:36 pm

    ECS: I actually don’t think it is unreasonable to bring homosexuality under a Carolene Products analysis. What I think intellectually insupportable is the Goodridge analysis that purports to apply rational basis scrutiny to declare traditional legal definitions of marriage unconstitutional. The court did not apply rational basis scrutiny and it was intellectually dishonest for the court to claim that is what it was doing so. As for Lawrence, Kennedy is incapable (or unwilling) to write a doctrinally coherent opinion on gay rights. I think there are respectable arguments to be made for the outcomes in these cases, but as a matter of judicial craft I think Goodridge and Kennedy’s oeuvre are pretty sorry stuff.

  49. Steve Smith
    July 12, 2015 at 9:06 pm

    Probably this thread has pretty much expired, but I’ve been busy all day and so didn’t see Sam Brunson’s comment until just now. In case anyone is still reading, here’s a question for Sam. I accept your description that the IRS has in the past rarely denied or revoked tax exempt status– that it has acted only when there was a supporting history, supporting politics, etc. But are you claiming that the IRS is legally prevented from acting except when all of these supporting circumstances are present?

    If that is your claim, then I don’t think Bob Jones supports you. The Bob Jones decision says, basically, that tax exempt status is available to organizations that qualify as charitable, and that to qualify an organization must serve a public purpose and must not be acting contrary to public policy. An institution like Bob Jones University that maintains some racially discriminatory policies is disqualified on the latter ground, and the free exercise clause (more vigorous then than now) does not alter this conclusion. This reasoning suggests that the IRS not only might but should deny tax exempt status to such organizations. And if discrimination based on sexual orientation is comparable to racial discrimination, . . . well, the conclusion is pretty obvious.

    So, what do you see in Bob Jones that supports your claim that the IRS couldn’t deny tax exempt status to an institution with policies that discriminate based on sexual orientation? (Read “couldn’t” as italicized.) Your argument, as I understand it, as that in practice that IRS has used this authority sparingly. Granted. But you want to go from this observation to the conclusion that the IRS is somehow legally prevented (italicized again) from acting more affirmatively or aggressively. I don’t see how you get there. If there’s something in Bob Jones that supports this leap, I’d be grateful if you’d point it out.

  50. Anon for this
    July 13, 2015 at 3:16 am

    I’m neither a lawyer nor an expert in these matters, but shouldn’t the way the Trinity Western law school case has played out in Canada be a hint of what may happen to religious schools in the US? It isn’t just about the 501(c)3 status or tax-exemption–it can be as basic as a state refusing to allow graduates from discriminatory schools to sit for a bar exam. The exact issue the court had issue with was their take that their university covenant (very similar to BYU’s honor code) was discriminatory so the law society was justified in refusing to recognize them. Trinity Western lawyers would not be eligible to practice in Ontario or BC so far. So the bottom line is–sure, have your law school, but the provinces won’t recognize your lawyers because your honor covenant of chastity discriminates. How can we naively assume that something like this won’t be tried here in the US? It would begin with a lawsuit from some aggrieved party saying that BYU’s honor code discriminates against them as an LGBQT individual and roll from there. The courts flip around and say, hey, you can choose your honor code but your graduates won’t have job opportunities if they get degrees from you. How is this anything but infringement on religious freedom to build an educational institution that supports the religion’s values? The court is saying–sure–have your school but if you want your students to get recognized accreditation you had better change those discriminatory religious views about chastity and marriage thus abandoning your values. This is the article that I found that outlined the most recent developments.

    This is why religious freedom is a serious concern for me. I have lived in countries where governments do discriminate on the basis of religion, where the church some belongs to or someone’s religious beliefs could lose them a job, keep them from educational options, or could invite persecution or violence. I have idealistically wanted to believe the US was beyond that. But some of what I’ve seen in social media and in newspaper articles post Obergefell makes me wonder if some of those crazy slippery slope arguments my ultra-conservative lawyer dad has been going on about for years aren’t as far fetched as I thought they were (I’m not talking about legalizing polygymy or polyandry). Put me in the column of cautiously concerned, a change from a few months ago when I thought settling Obergefell would be enough.

    Religious freedom has always been big deal and the church has been involved with supporting efforts to increase those freedoms wherever there are windows. My dad’s friend Cole Durham has been a huge part of those efforts–and for all religious people, not just Christians. The church has been trying to build a cooperative community of government leaders, religious leaders and scholars for years and years–it’s hardly been exclusive to Mormons or even Americans. I found Jana’s piece to be surprisingly disingenuous–like hashing through talking points–instead of presenting a well-reasoned argument on this issue.

  51. Nate Oman
    July 13, 2015 at 4:09 am

    I have been deleting comments that I see making or repeating personal attacks on Jana or others. Life is too short to spend it monitoring petulent blog commenters. I repeat that despite thinking Jana gets a bunch of stuff wrong in her post, I like and respect her. The fact that you disagree with someone doesn’t make them an idiot, a charlatan, or evil. On complex and difficult issues people can have good faith disagreements.

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