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Anti-LGBT Bill Is About Discrimination, Not Taxes

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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September 19, 2013

The so-called “Marriage and Religious Freedom Act,” introduced in the House of Representatives today, is a discriminatory wolf in anti-IRS sheep’s clothing. Touted as a modest response to the IRS selective targeting affair, the bill is nothing of the sort—and would actually give anti-LGBT groups special privileges to engage in partisan political activity that are not available to the rest of us.

To be clear, the ACLU is no fan of the selective scrutiny applied to certain groups (mainly conservative, but including several progressive entities) that came to light back in May. The fundamental issue there, however, was the lack of bright lines between apolitical issue advocacy and the express endorsement of or opposition to a candidate for office. The former is perfectly acceptable; the latter can jeopardize your tax exempt status as a charity or advocacy group. The problem is IRS officials have far too much discretion to distinguish between the two, which leads to the danger of selective enforcement.

It would be one thing if this bill merely clarified that support for or opposition to marriage for same-sex couples cannot be considered political campaign “intervention,” which can lead to denial or revocation of a group’s tax exempt status. (And here, it is important to note that no house of worship has ever lost, or been threatened with the loss of, their exempt status because of their views on marriage.)

This bill, by contrast, would give religious charities and groups opposed to marriage for same-sex couples a special privilege to engage in partisan political campaigning that is not available to groups, religious or otherwise, that support LGBT equality. Specifically, the bill bars the government from denying or revoking tax exempt status from a group based on “acts in accordance with the religious belief that marriage is or should be recognized as the union of one man and one woman, or” (and this is a trip) “that sexual relations are properly reserved to such a marriage.”

So, what would this mean in practice? Take the ACLU, which is both a 501(c)(3) (a charity) and a 501(c)(4) (a “social welfare” organization). Under current tax laws, the ACLU’s 501(c)(3) is completely barred from taking out an ad that says “Vote for Senator X because of his support for marriage for same-sex couples.” The ACLU’s 501(c)(4) theoretically could (but, as a matter of policy, wouldn’t). The 501(c)(4), however, could not spend more than half its money on such ads.

Under this bill, the ACLU would still be so constrained. The National Organization for Marriage or Family Research Council? Quite the contrary. They would be able to take out ads saying “Vote for Senator Y because of his opposition to marriage for same-sex couples.” In fact, a pure 501(c)(3) charity, which normally would be barred from spending any money on an express political endorsement would, under this bill, be able to spend all of their money on ads supporting anti-LGBT candidates without endangering their tax exempt status.

And there’s more, a lot more. The sponsors of this dangerous bill have spun it as a pure tax bill. But that’s only a small piece. The legislation would bar the government from taking any “adverse actions” – not just denial or revocation of exempt status — based on “acts in accordance” with a person or group’s opposition to marriage for same-sex couples.

This means the government would have to fund a group that blatantly discriminates against its employees or members of the public and could not deny any “grant, contract, cooperative agreement, loan, license, certification, employment, or other similar position or status.” Similarly, such groups could not be excluded from any “federal benefit program.” And it would even mean that government employees could pick and choose which members of the public they serve and discriminate against married same-sex couples.

If this were really about the IRS issue, the bill could have been drafted with a scalpel (and if it didn’t single out opposition to marriage for same-sex couples, might have even garnered support from us free speech folks at the ACLU). But it wasn’t, and it’s the definition of chutzpah for its sponsors to argue this is simply about a tax problem.

Their goal is much broader – to provide a sweeping license to discriminate against lawfully married same-sex couples and their children.

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