Expanding Bob Jones University v. United States

In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.

Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?

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10 Responses

  1. Jimbino says:

    What is the tax exemption status of the Boy Scouts? Shouldn’t they be treated just like Bob Jones U because of their avowed discrimination against atheists?

    After all, the US Constitution has banned government-sponsored discrimination on the basis of religion since 1789; not so for race discrimination, which wasn’t banned until Civil Rights legislation (not a Constitutional prohibition) starting in the 1950s.

  2. Joe says:

    The US Constitution banned a certain type of religious discrimination regarding religious tests for federal offices. Meanwhile, states were allowed to and had established religions. The U.S. Supreme Court waited until around 1960s to strike down a state religious test for notaries.

    The US Constitution also banned certain types of race discrimination (e.g., Taney notwithstanding, blacks were “persons” under the Constitution and the dissent in Dred Scott had a point).

    Anyway, “race discrimination” was clearly “banned” in various ways by the 14A and 15A. So, I don’t know what the “1950s” thing is all about. In fact, federal law protected against racial discrimination as early as the Civil War (e.g., equal salary in the military).

  3. AndyK says:

    I think the more important question is that in our increasingly post-racial society, is “eliminating race discrimination in education” a compelling state interest anymore? Bob Jones might be overruled in Fisher— doubtful, but possible. We’ve seen perverse incentives and success of minorities in all walks of life, the steadily-decreasing % of whites— all this suggests that natural processes are handling what the federal government has not or cannot, and what state educational institutions have not or cannot.

    Should we continue to see things through the eyes of race, or should we move forward?

  4. AndyK says:

    Because the implicit argument of the OP is that we *need* to remove tax subsidies to “racist” religious organizations (I can historically think of the Southern Methodists who supported slavery, Mormons who historically taught blacks were inferior, Muslims who did / do the same, and many Jewish synagogues that explicitly maintain teachings about their ethnic / racial superiority in the eyes of God), the question is worth asking— don’t we trust our society as a whole to avoid racist religious groups?

  5. Joe says:

    #4 … when Bob Jones was handed down, actually, quite a few did not “avoid” such groups. If they did, the government policy in place (largely to address those who went to private education to avoid integration) would have been much less important. These days, it is much better, but quite a few still belong to sexist organizations.

    Anyway, the question specifically is governmental funding and there the OP concerns something that now exists.

  6. Jimbino says:

    No Joe,

    The First Amendment prohibits “Congress” from establishing religion or interfering with its free exercise, a prohibition later extended to the states. There is no constitutional equivalent for race, including the 14th and 15th Amendments, which, as all the Jim Crow laws and Plessy v. Ferguson showed, did not mandate granting Blacks access to White-run public accommodations or even drinking fountains. Those rules weren’t changed until the Civil Rights Acts of the 50s and 60s.

    The question we now face is whether or not Public Policy considerations preclude the granting of tax breaks to non-church institutions, such as Bob Jones University and the Boy Scouts of Amerika, who continue to discriminate on the basis of race and religion.

    I would like to see tax breaks denied all churches, as well, as being against Public Policy.

  7. Joe says:

    #6 … your comment as to religion doesn’t change anything I said.

    As to race, yes, there was no “equivalent” as in similarly expressed limit, but there are various general rules in place that (as Justices McLean and Curtis noted in Dred Scott) do not necessarily have a “race exception.

    The presence of segregation goes to scope. It was originally generally assumed that “social discrimination” was allowable to that extent. Nonetheless, race discrimination was banned in various respects, including voting. Again, not in the exact same way, but contra to your comment, “government sponsored” discrimination WAS the very point of the 14A and 15A.

    My comment addressed that & not the “question” you end with. The application to the BS is reasonable — a previous contributor raised that concern a few weeks ago. Looking at the history of BJU, I don’t know if the test should be “non-church,” since it is an evangelical based institution and the 1A should be applied generally, not just to one means of promoting religion. Our Protestant tradition is full with such individualistic efforts.

    I’m not inclined to be against all tax breaks for churches alone if they fit the general criteria of tax breaks. That seems to be discriminatory under the 1A. A hands off approach to churches seems to advance separation of church/state ends too. But, there are some reasonable arguments on the other side.

  8. John Pack Lambert says:

    The Bob Jones University ruling was a direct attack on the 1st admendment. Allowing government institutions to ban tax exemptions because institutions follow their deeply held religious beliefs clearly allows government discrimination on the basis of religion. This was a bad decision and the earlier it is overturned the better off we will be.

    Of course, attempting to apply it to BSA not accepting atheists makes no sense. Government tax exempt status is applied to thousands of schools that have various religion based policies that if followed by public instutitions would clearly run aganst the 1st admendment. It has long be accepted that private institutions can do lots of things that are “discriminatory” and maintain tax exempt status.

    The reasoning in the Bob Jones case comes out of seeing a public policy need to destroy racial descrimination. Where this involves seeking to change the religious views of American citizens this should be seen as a violation of the 1st admendment.

  9. Joe says:

    #8 does not address the discussion in the ruling that explains why the 1A is not violated. There is no 1A right to a tax exemption & the one in question was not applied to racial discrimination. This furthered a “compelling state interest” and since the rule was neutral and secular in intent, it was not an Establishment Clause violation.

    Combating racial discrimination is not the only “compelling state interest” out there. Sex discrimination is another. Tax exemption is something done to promote the public good. Neutral and secular criteria can be set here & under Oregon v. Smith, the fact a specific religion or other institution conflicts with such state interests is not a reason to strike it down.

    It very well might be a bad idea to not target the Boy Scouts since the concern at issue is less compelling and it would promote freedom of association etc. to have a diversity of views here. It is not blindly obvious however that it is a good idea to provide tax benefits to organizations that discriminate in various ways. For instance, if the disabled is burdened, even if the organization’s beliefs demand it.

    The BS has a double burden, as we know, given sexual orientation is targeted as well. Such a burden on status over belief might be more problematic. It might be deemed validly against public policy to not provide tax benefits to such groups, just as we might not benefit polluters even if their personal beliefs compel the pollution.

  10. Matt Walker says:

    It is utterly ridiculous to assume that all charitable organizations receive government subsidies or rather, that they do not actually pay taxes.

    I pastor a church. We just built a new building (our first) and it cost us about 350k to do the site work the town required. Much of that was to extend infrastructure for the town such as water and sewer. While the church will benefit from these, it could have existed comfortably on a well and with a septic system. But that would not have benefited the town or helped it recoup costs (that the Federal Government) has placed upon it to upgrade its water system. Moreover, the town required the church to build a new road giving the town the land on which the road sits. That cost the church about 1/3 of an acre. A nearby parcel is selling for about 300k per acre–you do the math.

    We also get no (repeat…no) governmental assistance of any kind. The only way the church can do this is for the employees to take less pay than they deserve (based on their experience and education).

    By the way, after the church was built the town asked to use it for a civic gathering. Incredible.