Law Professor Calls for Denying Tax Exemptions to the Catholic Church, Orthodox Synagogues, and Other Groups That Discriminate Based on Sex

See Caroline Mala Corbin, Expanding the Bob Jones Compromise, in Matters of Faith: Religious Experiences and Legal Responses in the United States (forthcoming, Cambridge University Press). This isn’t the first such call, but it still struck me as noteworthy. Indeed, the rationale — that exemptions are generally denied to racially discrimination groups, so they should also be denied to groups that discriminate based on sex (for instance, in choice of clergy) — suggests that similar arguments would likely be made in the future as to groups that exclude gays and lesbians from the ministry as well. And conversely the argument that sex orientation discrimination is just like race discrimination, if accepted, will strengthen the appeal of the arguments that sex discrimination is like race discrimination, too, and should be just as marginalized as race discrimination even in matters such as the selection of priests and rabbis.

I should note that I don’t think such a denial of tax exemptions to sex-discriminatory groups — if applied generally to all groups, religious and secular — would be unconstitutional; see Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006). Just as the government may deny tax exemptions to groups that engage in First-Amendment-protected electioneering, and substantial amounts of First-Amendment-protected lobbying, and just as it may deny funding for constitutionally protected abortions and access to government property for constitutionally protected abortions, so it may deny tax exemptions to groups that engage in discrimination that’s protected under the First Amendment’s religious association or expressive association protections.

But I think such proposals are bad policy, and are contrary to the worthy American tradition of religious pluralism and tolerance. When the government (federal, state, and local) spends over 1/3 of the gross domestic product, and when tax exemptions are broadly available to a vast range of charitable organizations, it would be wrong, I think, to deny this same exemption to religious institutions that take a different approach to sex relations than does the government (assuming the government indeed adopts the rigid view that the professor suggests).

I take the same view as to groups (religious and ideological) that engage in constitutionally protected race discrimination, for instance in selecting clergy. While I think such discrimination is wrong, I don’t think religious and expressive groups that engage in such discrimination ought to be excluded from such generally available benefit programs. But even if one thinks that race discrimination is so especially bad that it warrants the total exclusion of race-discriminatory groups from generally available programs, I don’t think that this ought to extend to sex. There are many real differences between the sexes, differences that decent people can see as justifying different gender roles, in the family, in the church, and in life more broadly; religious groups that embody such distinctions in their ordination decisions and their educational practices ought to do so without the massive government pressure that denial of generally available tax exemptions would provide.

And I hope that religious groups that could be affected by such proposals watch out for them, and try to act proactively to persuade the public that antidiscrimination norms should not extend that far. Indeed, Catholic groups’ recent statements defending their rights to discriminate based on sexual orientation in various charitable activities may be a way to do that — to reinforce the notion that religious groups should not be excluded from generally available benefit programs because they disagree with an emerging orthodoxy about sexuality or sex roles.