Bench Memos

Law & the Courts

More on SSM ‘Bait-and-Switch’

A follow-up to my post about Jonathan Last’s excellent cover article in the Weekly Standard:

Nine years ago, two leading academic proponents of redefining marriage to include same-sex couples forcefully declared (in a Chicago Tribune article) that concerns that religious institutions that opposed that redefinition might lose their tax-exempt status were ridiculous.

Law professor Cass Sunstein asserted that such a concern was just an effort by pro-marriage groups “to scare people.” Sunstein, an expert in the probabilistic estimates that underlie cost-benefit analysis, proclaimed, “The likelihood religious organizations would lose their tax exemption is as close to zero as anything in law is.”

Law professor Andrew Koppelman chimed in similarly: “This is yet another of the predicted horrible consequences of same-sex marriage that just isn’t going to happen.”

Fast-forward to the oral argument in the marriage cases just two months ago, in which Solicitor General Donald Verrilli ominously volunteered that “it’s certainly going to be an issue” whether a college that opposes SSM would lose its federal tax-exempt status.

(Just as I was finishing the draft of this post, I did a quick search to see whether Sunstein or Koppelman had offered any comments on Verrilli’s remarks. I came up empty, but I did run across this post by Jonathan Last two days ago calling attention to the same Sunstein and Koppelman quotes from nine years ago.)  

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