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Could religious institutions lose tax-exempt status over Supreme Court’s gay marriage case?

Activists protest outside the Supreme Court on April 28, 2015 in Washington, DC. (Photo by Olivier Douliery/Getty Images)

The Supreme Court Tuesday considered whether same-sex couples have a constitutional right to marry, raising questions about how it would affect religious institutions.

During oral arguments, Justice Samuel Alito compared the case to that of Bob Jones University, a fundamentalist Christian university in South Carolina. The Supreme Court ruled in 1983 the school was not entitled to a tax-exempt status if it barred interracial marriage.

Here is an exchange between Alito and Solicitor General Donald B. Verrilli Jr., arguing for the same-sex couples on behalf of the Obama administration.

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­exempt status if it opposed interracial marriage or interracial dating.  So would the same apply to a 10 university or a college if it opposed same­-sex marriage?
General Verrilli:  You know, ­­I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito.  It is –it is going to be an issue.

Bob Jones received national attention when then-presidential candidate George W. Bush visited in 2000, prompting the school to drop its ban on interracial dating. The case has been a cause for concern among religious institutions that hold that marriage is between a man and a woman.

Justice Antonin Scalia asked attorney Mary L. Bonauto, who is representing gay couples in the case, whether it is it conceivable that a minister could decline to marry two men if indeed the Supreme Court holds that they have a constitutional right to marry.

“No clergy is forced to marry any couple that they don’t want to marry,” Bonauto said. “We have those protections.”

Justice Elena Kagan clarified by comparing the question of whether rabbis would have to marry Jews and non-Jews. “You agree that that ministers will not have to conduct same-­sex marriages,” Scalia asked Bonauto.

“If they do not want to, that is correct.  I believe that is affirmed under the First Amendment,” Bonauto said.

Chief Justice John Roberts asked, “Would a religious school that has married housing be required to afford such housing to same-­sex couples?”

Verrilli said that individual states could strike different balances because there there is no federal law now generally banning discrimination based on sexual orientation.

Justice Stephen Breyer asked whether purely religious reasons to oppose same-sex marriage were sufficient. John Bursch, who argued for state bans against same-sex marriage, replied that he is not arguing on the religious grounds.