John Inazu is associate professor of law and political science at Washington University in St. Louis. This essay draws from his forthcoming book, “Confident Pluralism: Surviving and Thriving Through Deep Difference” (University of Chicago Press, 2016). Twitter: @JohnInazu
Tax-exempt status is available to a vast range of ideologically diverse groups. The meanings of “charitable” and “educational” under the Internal Revenue Code are deliberately broad, and “religious” organizations are not even defined. Among the organizations that qualify as tax-exempt, each of us could find not only groups we support, but also those we find harmful to society. And our lists of reprehensible groups would differ. The pro-choice group and the pro-life group, religious groups of all stripes (or no stripe), hunting organizations and animal rights groups — the tax exemption benefits them all.
Nor does the mere assertion that a group differs from “established public policy” alter these basic principles. To the contrary, one of the basic functions of tax-exempt groups in civil society is to challenge what many consider to be “established public policy.” As Supreme Court Justice Lewis Powell once wrote, “the provision of tax exemptions to nonprofit groups is one indispensable means of limiting the influence of governmental orthodoxy on important areas of community life.” That is one reason that gay rights advocacy groups were tax-exempt a generation ago, and it is one reason that conservative religious groups remain tax-exempt today.
Yale Law School professor Robert Cover pointed to many of these ideas in an article written shortly after Bob Jones University v. United States, the 1983 decision upholding the denial of tax-exempt status to schools that practiced racial discrimination. As Harvard Law School dean Martha Minow writes, Cover critiqued “the power and practice of a government that rules by displacing, suppressing, or exterminating values that run counter to its own.” Cover was not insensitive to racial injustice — he spent three weeks in a Georgia prison for helping the voting rights campaign of the Student Nonviolent Coordinating Committee in the 1960s. But he worried about the government’s exercise of what he described as “superior brute force” against Bob Jones University.
The Bob Jones case ultimately concluded that “exterminating” certain values was justified in light of the immense social costs of racial discrimination in schools. But the decision to unilaterally extinguish a certain value system should not be lightly repeated. In most cases, our society’s ability to coexist across deep differences — what I have called “confident pluralism” — must allow for viewpoints and groups that we regard as irrational, immoral or even dangerous.
Religious nonprofits should not have to worry about their tax-exempt status even if they don’t support gay marriage. As Justice Anthony Kennedy recognized in Obergefell v. Hodges, millions of Americans maintain traditional views about marriage based upon “decent and honorable” premises, and the First Amendment ensures that religious citizens “are given proper protection.” Moreover, religious organizations provide enormous resources and significant infrastructure to benefit the public good.
Minow notes that Cover recognized that in a pluralistic society, some norms would “be at odds with his own notions of human equality and liberty.” Today’s progressives would show more courage — and more confidence in their own ideas — if they were willing to do the same.
Read more in this series:
Miranda Fleischer: Churches are more private club than public good. Why do they need tax exemptions?