The Commissioner of the Internal Revenue Service vowed in a Senate hearing this week that the federal agency will not strip Christian colleges and universities of their tax-exempt statuses should those institutions refuse to update school policies to be more accommodating toward gay marriages.
Following the Supreme Court decision in June that nationally legalized same-sex marriages, fears have dramatically risen that Christian colleges and institutions could be stripped of their tax-exempt statuses if they don't compromise their biblical beliefs on the subject of same-sex marriage.
But IRS Commissioner, John Koskinen, told Sen. Mike Lee, R-Utah, in a Judiciary Oversight Subcommittee hearing on Wednesday that he will commit to making sure that the IRS does not punish religious schools for not adopting policies to accommodate gay marriage — such as allowing married same-sex couples to live in married student housing — as long as he is in charge of the IRS.
"I can make that commitment," Koskinen assured.
However, Koskinen did leave the door wide open for tax-exempt statuses to be a problem for Christian schools in the future.
Lee, who introduced legislation in the Senate last month that would prevent the federal government from imposing consequences on individuals or organizations that uphold religious beliefs on marriage, asked Koskinen if Christian colleges losing their tax-exempt status could be an issue as the nation moves forward with the Supreme Court's gay marriage decision.
Lee explained that Solicitor General Donald Verrilli said that it "is certainly going to be an issue," when asked by Justice Samuel Alito during the Supreme Court oral arguments in Obergefell v. Hodges in May. Lee asked if Koskinen shares that view and if that is going to be a real concern.
"The [subcommittee] chairman, [Sen. Ted Cruz, R-Texas,] last week, asked the same question in a letter asking for our response and we responded to the chairman and we have responded publicly that at this time, we see no basis for changing our examination criteria as a result of this Supreme Court case," Koskinen said.
Lee was not satisfied with Koskinen's answer and further asked: "When you say 'at this time,' is that meant to qualify or restrict your answer or are you saying there is no basis upon which you could revisit tax-exempt status."
"At this time there is no basis for us to revisit tax-exempt status on that 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," Koskinen further explained. "But that exam and those reviews will continue as they always have."
Lee was still "troubled" by the fact that Koskinen again prefaced his answer with the phrase "at this time" and asked Koskinen if he was using that language in order to keep the issue open to the possibility that the IRS might might revisit that question at some point in the future.
"I don't mean to leave uncertainty there. It's not the IRS's position to make public policy. We implement the laws as they stand," Koskinen said. "It is our view right now in terms of overall lay of the land that there is no basis at this point to make any different change in our review policies and our exam policies. We can't predict over the next years what is going to happen in terms of decisions that will be made in public policy but those aren't decisions that we are going to make."
Lee then asked who would make such changes to public policy if they were to be made. Koskinen responded saying those decisions would either be made through the legislature or through court decisions.
"So to the extent that Solicitor General Verrilli was suggesting otherwise when he said 'that is certainly going to be an issue,' he was mistaken?" Lee asked. "Would you disagree with that characterization?"
Koskinen said he would "not necessarily" disagree with Verrilli's statement.
"Not necessarily, but he was not saying that it would be an issue with the IRS. I think what he was trying to say was that over time and other areas over time, public policy decisions have been made by courts and legislatures that ultimately then did influence tax-exempt status," Koskinen contended. "The Bob Jones case is one of those. But that was not a case of policy made by the IRS, that was a case over 15 or 20 years of decisions made by courts and legislatures."
Lee said that the court decisions in the Bob Jones case were based off of actions taken by the IRS.
"A regulation put out by the IRS before that case was based on decisions made by Congress and the courts and everyone was given plenty of notice of what the IRS interpretation was," Koskinen argued. "There is no basis for us to issue such regulation at this time."
Lee still disagreed saying that the Bob Jones decision was ultimately not a decision made by Congress or courts, but a decision made by the IRS. But Koskinen replied by saying that the IRS's action in the Bob Jones case was based on the fact that courts and states passed various anti-discrimination laws.
"All we do is follow whatever the public policy is that is set by other organizations," Koskinen argued. "At this point other actions would have to take place before the IRS can consider issuing a regulation, which would give people notices to what we think the public policy was and then cases and exams would be conducted under that."
"Down the road, if the IRS ever moves in that direction because of public policy changes, it would first issue a draft regulation for public comment so the public would have plenty of notice and plenty of opportunity for comment and that's not going to happen in the next two-and-a-half years," Koskinen continued.
After the Hearing, Lee told reporters that despite Koskinen's answers, Americans should be skeptical considering that the agency has previously been used to target Christian and conservative groups..
"While I greatly appreciate Commissioner Koskinen's word that he will not target religious institutions for their religious beliefs, it worries me and it should worry every American that the IRS does not absolutely disavow the power to target religious institutions based on their religious beliefs, even if the current IRS commissioner has committed not to use that power for the time being," Lee asserted.