Elizabeth Warren wasn’t the only candidate to raise eyebrows with comments she made at last week’s LGBT rights forum featuring the Democratic candidates for President. Beto O’Rourke, who is trying to turn around a struggling campaign, went even further and put forward an idea that even some of his fellow candidates are criticizing:

Former Rep. Beto O’Rourke said Thursday that churches and other religious institutions that oppose same-sex marriage should lose their tax-exempt status, taking the Democratic presidential debate into uncharted — and controversial — territory.

The Texas Democrat was asked about the concept by CNN anchor Don Lemon at a 2020 candidates’ forum on LGBTQ issues co-hosted by the network and Human Rights Campaign Foundation.

“Do you think religious institutions like colleges, churches, charities should they lose their tax-exempt status if they oppose same-sex marriage?” Lemon asked

“Yes,” O’Rourke replied. “There can be no reward, no benefit, no tax break for anyone, or any institution, any organization in America, that denies the full human rights and the full civil rights of every single one of us. And so as president, we are going to make that a priority, and we are going to stop those who are infringing upon the human rights of our fellow Americans.”

O’Rourke appeared to go dramatically further than the existing political and legal conversation over LGBTQ rights and religious discrimination, which has largely centered on questions of whether private businesses can decline services to customers or refuse to hire or maintain employees on the basis of sexual orientation or transgender status. Other recent cases have been concerned with the basis on which religious schools can hire or fire staff.

The comments drew applause at the event, but quickly circulated among conservative commentators and drew condemnation from activists that have defended religious institutions in related legal fights.

“Beto O’Rourke’s threat is a direct affront to the constitutional guarantee of religious liberty,” Kelly Shackelford, president of First Liberty Institute, said in a statement.

In another statement, Republican Sen. Ben Sasse of Nebraska called O’Rourke’s remarks “bigoted nonsense” that “would target a lot of sincere Christians, Jews, and Muslims.”

“This extreme intolerance is un-American,” Sasse added.

(…)

It’s unlikely that efforts to end tax-exempt status for many religious organizations on the basis of opposition to same-sex marriage would pass legal muster given recent precedent upholding a variety of constitutional protections for churches, clergy and religious rituals.
Writing the Supreme Court majority opinion legalizing gay marriage, Justice Anthony Kennedy emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Marcia McCormick, a professor at St. Louis University School of Law, said there are some legal distinctions between belief and actions and between religiously affiliated institutions like colleges, which courts have ruled cannot discriminate on the basis of race, and churches, which have broader rights.

“There is kind of a continuum,” she said. “Religious beliefs alone about religion are the most protected, secular kinds of actions are least protected.”

Michael Wear, who led faith outreach efforts for President Barack Obama’s re-election campaign, warned that O’Rourke was risking alienating religious voters across the ideological and denominational spectrum.

“If that isn’t a religious freedom violation, I don’t know what is,” he said. “It’s so facially unconstitutional that it’s hard for people to believe there isn’t ill will involved in even suggesting it.”

Here are the video and transcript:

CNN, DON LEMON: Congressman, I want to ask you a question. This is from your LGBTQ plan, and here’s what you write. This is a quote. Freedom of religion is a fundamental right but it should not be used to discriminate. Do you think religious institutions, like colleges, churches, charities, should they lose their tax-exempt status if they oppose same-sex marriage?

BETO O’ROURKE: Yes.

(APPLAUSE)

There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us. And so as president, we’re going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans.

Fellow candidate Pete Buttigieg, who of course is gay and married to man, criticized O’Rourke’s argument:

2020 presidential candidate Pete Buttigieg (D) on Sunday took aim at former Rep. Beto O’Rourke (D-Texas) for saying that religious institutions should lose their tax-exempt status if they oppose same-sex marriage, arguing the policy would only “deepen the divisions we’re already experiencing.”

“I agree that anti-discrimination law ought to be applied to all institutions. But the idea that you’re going to strip churches of their tax exempt status if they haven’t found their way towards blessing same-sex marriage, I’m not sure [O’Rourke] understood the implications of what he was saying,” Buttigieg, the mayor of South Bend, Ind., said on CNN’s “State of The Union” while discussing comments O’Rourke made during the network’s LGBT town hall.

“That means going to war not only with churches, but I would think with mosques and a lot of organizations that may not have the same view of various religious principles that I do. But also because of the separation of church and state are acknowledged as nonprofits in this country.”

Buttigieg went on to emphasize that anti-discrimination laws must be followed by religious institutions. But he stressed that “going after the tax exemption of churches, islamic centers or other religious facilities in this county” would potentially cause more polarization in the country. 

Here’s the video of Buttigieg’s comments:

Elizabeth Warren has also criticized O’Rourke’s response:

Massachusetts Sen. Elizabeth Warren said she would not punish religious institutions that oppose gay marriage by taxing them, separating herself from fellow Democratic presidential candidate Beto O’Rourke.

O’Rourke said last week that religious institutions opposed to gay marriage should lose their tax-exempt status and said he would make doing so a priority. O’Rourke’s proposal sparked concern among Democrats that his remarks would mobilize religious Trump voters by fostering fears a Democratic candidate would target churches if elected to the presidency. Now Warren, tied for front-runner with former Vice President Joe Biden in primary polls, is rejecting O’Rourke’s proposal.

Warren campaign spokeswoman Saloni Sharma told the Associated Press in an email the senator “will stand shoulder to shoulder with the LGBTQ+ community” to fight “fear of discrimination and violence” but would not undo the tax-exempt status of religious organizations that oppose gay marriage.

“Religious institutions in America have long been free to determine their own beliefs and practices, and she does not think we should require them to conduct same-sex marriages in order to maintain their tax-exempt status,” said Sharma.

O’Rourke’s comments have drawn criticism from other corners, including from conservatives, and his campaign has suggested that he was misinterpreted. At this time, though, neither his campaign nor the candidate himself have attempted to clarify the remarks in any way. Thus, we are left with his own words, which clearly state that he would attempt to revoke the tax-exempt status of institutions that do not recognize same-sex marriage.

Obviously, this position goes far beyond what Warren said, which can perhaps be dismissed as a joke. Indeed, it appears to be at least implied by the positions he has outlined on his website regarding LGBTQ+ issues, where he has also taken the position that he would end certain exemptions from the law provided to religious organizations if they oppose marriage equality. Essentially what he is saying is that religious organizations that oppose marriage equality would lose their tax-exempt status even if they don’t do anything discriminatory beyond declining to solemnize same-sex marriages within the context of their faith.

The constitutional issues with O’Rourke’s proposal are, as Bonnie Kristian notes at The Week, rather obvious:

The constitutional problem is simple: The federal government cannot mete out benefits or punishments on theological grounds. As Cato Institute legal scholar Walter Olson explains at Overlawyered, “a long line of court opinions has made clear that … ‘tax exemptions can’t be denied based on the viewpoint that a group communicates.’” The law can make distinctions based on group behavior or “for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment, such as true threats of criminal attack, or incitement intended to and likely to cause imminent criminal conduct,” but not for simple belief, even of very offensive tenets.

The Supreme Court has come down hard on federal efforts to manipulate religious institutions’ internal decision-making processes; in 2012, for example, the justices unanimously struck down an Obama administration attempt to interfere in church hiring for ministerial roles. This means that whatever O’Rourke says about making his proposed change “a priority,” he would face a steep uphill legal battle. That legal reality isn’t debatable, and it turns O’Rourke’s position into empty grandstanding. It’s also a safeguard that works both ways: If a President O’Rourke can strip nonprofits of tax exemptions based on their beliefs, so can a President Trump.

The political issues with O’Rourke’s proposal, meanwhile, are similar to those raised by Warren’s little joke, although they are potentially more serious given that this is a policy proposal while Warren’s was not. In addition to those culturally conservative working-class voters that I spoke of in the Warren post there are also other groups that could have problems with an idea like this one. Additionally, as Kristian notes support for same-sex marriage is still a minority position among religious African-Americans, Does this mean that African-American churches, and religiously-affiliated historically black colleges and universities could lose their tax-exemption unless they agree with the majority position on same-sex marriage? What about American Muslims, who also tend to oppose same-sex marriage as an article of faith? And, of course, there are the Catholic and Eastern Orthodox Curches that consider it to be a matter of doctrine that marriage in their church is to be only between a man and a woman. Would O’Rourke’s position mean that Catholic hospitals, social service organizations, and schools would lose whatever tax exemptions they’re entitled to because of their faith?

As Kristian points out, this would have a significant impact on their ability to provide the services that millions of people benefit from:

Those Catholic hospitals are just one part of an extensive religious social service infrastructure that serves millions of Americans of all faiths every day. You may think this isn’t how it should be — perhaps you want all social services to be nonsectarian or handled by the state — but that doesn’t change the current reality, nor does it reflect the desires of many other Americans who support and benefit from these organizations. If all the religious nonprofits with doctrinal opposition to gay marriage lose their tax exemptions, vulnerable people will suffer as a result. The effects would not be limited to white, Republican Protestants. In fact, it would almost certainly do tangible harm to some of the very gay Americans whom O’Rourke purports to protect.

As I noted, unlike Warren’s joke which she can perhaps put behind her by addressing it head-on, O’Rourke proposal is a concrete policy idea that would have wide-ranging, and largely negative, impacts if enacted. Additionally, for the reasons noted above it seems to have some real problems under the First Amendment in that it seems like a clear case of viewpoint discrimination, which is clearly unconstitutional. Obviously, O’Rourke put this idea out there to try to revive a flailing campaign that appears to be sinking fast. That, perhaps, is why has all the signs of being the kind of idea that wasn’t sufficiently thought through, and it’s one that other candidates are going to have to be able to respond to if and when they are inevitably asked about it. As Pete Buttigieg did, they’d best be advised to distance themselves from it.