WASHINGTON — The lead attorney representing the Obama administration admitted before the U.S. Supreme Court on Tuesday that if the court were to rule in favor of making same-sex marriage a constitutional right, it would create a religious liberty "issue" for faith-based schools and institutions, who could be at risk of losing their tax-exempt statuses.
As the Supreme Court listened to oral arguments regarding whether the 14th Amendment requires states to issue same-sex marriage licenses, U.S. Solicitor General Donald Verrilli tried to dodge a question from Chief Justice John Roberts, who asked him whether or not religious schools which have married housing would be required to provide housing to same-sex married couples.
The solicitor general, which is the third highest ranking official in the Justice Department and is appointed to speak on behalf of the Obama administration in court cases, provided a winded answer to Roberts about how it is the states that are responsible for setting their civil laws.
Roberts continued prodding Verrilli by saying that even though states set their laws, the federal government has "enforcement power," which Verrilli admitted was true but reasoned that there is no federal law "now" that bans discrimination based on sexual orientation.
Justice Samuel Alito followed up and asked a pointed question regarding whether religious schools could have their tax-exempt status revoked for not providing same-sex couples with housing. Alito referenced the 1983 Bob Jones University Supreme Court case, which ruled that the Internal Revenue Service could revoke the school's tax-exempt status for refusing to accommodate interracial married couples with housing.
"So would the same apply to a university or a college if it opposed same-sex marriage?" Alito asked.
It was clear that Verrilli did not want to answer that question but offered an offhand remark assuring that a ruling in favor of gay marriage would create some issues.
"You know, I don't think I can answer that question without knowing more specifics but it's certainly going to be an issue," Verrilli stated. "I I don't deny that. I don't deny that, Justice Alito. It is, it is going to be an issue."
Speaking at a Heritage Foundation panel on Wednesday, which discussed Tuesday's oral arguments, Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, explained that Verrilli's answer indicates that the Obama administration is looking to "preserve the ability to remove tax-exempt status from institutions, like religious universities."
"What this exchange shows is that the administration wants to leave the door wide open to do [removing tax-exempt statuses]," Severino told The Christian Post after the panel. "Not that they could really be bound, necessarily, by the statements here but the solicitor general does not want to, even in furtherance of winning this case, because him saying 'Don't worry, that won't happen,' that would actually help him in this case. Even though that would help his case, he said, 'I am not going to say that. We are not going to go there.'"
"Frankly his answer to Chief Justice Roberts a minute earlier more or less admitted that the federal government could say this case could force a religious college to open its married housing to a married same-sex couple if they were married under laws of the state," Severino added.
Severino also explained that such a ruling in favor of constitutional gay marriage would create a "head-on collision" with religious expression.
"That ought to give a lot of people cause to say that this is an absolute head-on collision potentially with religious liberty because the arguments that are being made on the other side are so extreme here," Severino stated.
Severino reasoned that if such a ruling could cause tax-exempt status issues for Christian universities and schools, it could also present religious freedom conflict for faith-based charities and other organizations also.
"There isn't any reason to say that it clearly wouldn't extend to charitable organizations, potentially even to removing tax-exempt status from a house of worship, which is a slightly different argument but I can see people trying to make that argument," Severino asserted. "Taking the tax-exempt status thing would be a gigantic step and a very serious blow to a lot of institutions, all sorts of charitable institutions that are run by religious organizations from Salvation Army on down."
"Just imagine if all of those groups were not tax-exempt anymore and what impact that would have on their ability to serve the poor the way they are attempting to do and live out their faith," she continued.
Severino expects that the potential for conflict with religious liberty will somehow weigh into the case's outcome even if the court decides to constitutionalize gay marriage.
"Those potential collisions were brought out and will affect the way the justices decide this case because I think that Justice [Anthony] Kennedy is not going to want to have that kind of collision with religious liberty, and any of the justices ought to be concerned with the potential of further limiting the religious liberty at this point," she said. "Perhaps, even if it doesn't mean that is going to affect the outcome entirely, it may affect the way that the opinion is written in a way to have less of a risk to steamroll religious freedom."