Michael Farris, chairman of the Home School Legal Defense Association and chancellor of Patrick Henry College, has this article in USA Today. It is both heartwarmingly spirited in its defiance and disturbing in its predictions.
Farris takes the omens from the discussion of tax exempt status and homosexual "marriage" before SCOTUS recently in oral arguments. As Farris notes, Justice Alito asked Donald Verrili, who was arguing on behalf of the federal government in favor of imposing homosexual "marriage" on the entire country, whether the Bob Jones precedent would be used to strip tax-exempt status from Christian schools who refuse to recognize homosexual "marriage." Verrili replied, "It's certainly going to be an issue," implying that this could indeed happen.
Farris's concerns about Christian colleges are well-founded, and his point that stripping of tax-exempt status would cause many colleges, even those who don't accept government money, to founder, is simply correct in practical terms.
I have done a small amount of reading up on the decision in Bob Jones v. United States. I admit, I have used Wikipedia for this purpose, as I don't have time right now to do what I would prefer to do and get hold of the decision itself and read it. Readers who believe that the summary I have accepted is incorrect on a point I highlight are most welcome to correct my impression.
I think it very likely that if the SCOTUS ruling goes the wrong way, the IRS will change its regulations to give tax-exempt status only to private schools that don't "discriminate on the basis of sexual orientation" and will try to strip that status from many Christian private schools. A case for a religious exemption will be filed and will go up to SCOTUS, and there is a very real danger that SCOTUS will decide, as it did in the Bob Jones case, that the government interest in preventing such "discrimination" outweighs the burden placed on religious liberty by stripping tax exempt status.
However, I am a little surprised that Farris (who is a legal eagle if there ever were one) and others have been so quick to assume that the precedent would be applied to churches as well. Farris points out that churches are governed by the same portion of the IRS code as Christian schools. But it appears that the SCOTUS precedent in the Bob Jones case was expressly stated to apply only to schools and not to "churches or other purely religious institutions." Here I'm assuming that the Wiki author actually read and is quoting the original opinion, but I might have expected Farris to make reference to that restriction.
Prima facie the Bob Jones precedent could not be directly ported over to churches. Of course, while we're making predictions, we may predict that the lawless court would extend the ruling to apply to churches as well. Or what might happen (this seems rather plausible) is that in any legal tussle over IRS action against a Christian college, a new "Bob-Jones type" ruling against that Christian college would coyly neglect to state whether the new precedent being set did or did not apply, as the Bob Jones precedent explicitly did not, to churches. This would leave churches open to IRS harassment and require more years of litigation to determine.
I think the solemn warning concerning colleges is completely apt. And certainly churches who run a Christian K-12 school should assume that the warning applies to their schools as well. (Some small Christian K-12 schools even have joint budgets with the church that runs them, which raises all kinds of issues for tax-exempt status if the school should lose it.) Also, as we have discussed before (and there are legal reasons for this in some state law) churches that, for a fee, rent their buildings for weddings should start now to restrict that use to members or in some other clearly religious way so that they are not caught by "public accommodations" laws.
But it seems to me that churches per se may be in somewhat less danger than Farris implies of losing their tax-exempt status by IRS imitation of the Bob Jones scenario.
This is worth saying but is fairly cold comfort as we contemplate the possible destruction of Christian private school education from childhood through college throughout the United States. For so many years I attended Christian schools myself and would sometimes hear someone--a pastor, principle, or professor--remind us how fortunate and blessed we were to have "the freedom to meet here." It is a sobering thought that that freedom for Christian schools may be ending and that direct government tyranny, shutting down Christian schools for being Christian, may be on its way. I am glad to see Farris and Patrick Henry ready to fight the good fight in good heart and never to give in. We need more of that fighting spirit, though we don't know what will come. May God defend the right.