Bench Memos

Senator Mike Lee’s Cross-Examination of John Koskinen

Underpublicized during the heat of summer, but important: Utah senator Mike Lee recently was able to get IRS commissioner John Koskinen to commit, publicly, on behalf of the Obama administration, that the IRS and the administration will not in its remaining time in office propose or urge — by regulation, or in any form — that action be taken against the tax-exempt status of any religious college or university whose beliefs, teaching, and practices do not acknowledge or support the right of same-sex marriage.

I have watched the video several times — looking for loopholes — but think that the commitment is about as categorical and unequivocal as it is possible to make under the circumstances. The Obama administration has pledged not to take action against the tax-exempt status of religious institutions who are not in line with the Brave New World of Obergefell’s creation of a federal constitutional right to same-sex marriage. (There is, perhaps some wiggle room in the way Senator Lee framed the question, speaking of an institution’s religious belief. An administration, determined to act in bad faith, so to speak, might, Clinton-like, parse the words of the question, and decide to take action against a religious college or university based on its conduct consistent with its religious beliefs, and assert that this was not based on the institution’s beliefs.)

Here’s the video of the Lee–Koskinen colloquy:

This is reasonably important news. Famously, at oral argument in Obergefell, Obama’s Solicitor General would not commit to such a position, but volunteered — a bit too cheerfully — that such continued tax-exempt status would be an “issue” if same-sex marriage became the constitutional law of the land. Senator Lee’s cross-examination yielded Koskinen’s pledge that the administration would not be taking any such action for the next two-and-a-half years, by proposing a regulation for public comment, or through any other means. (Two-and-a-half years? Is the Obama administration planning on overstaying its term?)

Obviously, the danger remains. The best permanent answer is a clear statutory prohibition. In Bob Jones University v. United States (1983), the Supreme Court upheld the IRS’s revocation of a fundamentalist Christian university’s tax-exempt status based on Bob Jones University’s (then) policy forbidding interracial marriage and dating. The Court found IRS’s actions to be (1) authorized as a matter of statutory and regulatory authority; and (2) not barred by the Free Exercise Clause of the First Amendment. (And this was pre-Employment Division v. Smith (1990), when the Court’s Free Exercise jurisprudence still required a “compelling” interest accomplished by the “least restrictive means” before government could impose a substantial burden on the exercise of sincerely-held religious beliefs – the standard that now applies as a statutory matter to actions of the federal government, under the Religious Freedom Restoration Act.)

Both holdings are wrong. In the very first law-review article I ever wrote, a gazillion years ago (1986), I argued that Bob Jones University’s practices, while theologically unsound, were constitutionally protected by the Free Exercise Clause and that the IRS could not lawfully take action against the university’s tax-exempt status based on the IRS’s view that a religious organization’s religious views and practices, applied to members of its own voluntary faith community, were against “public policy.” The article is ponderously entitled, “Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication” and it was published by the Notre Dame Law Review – 61 Notre Dame L. Rev. 311 (1986).  

I thereby made myself forever confirmation-proof at the ripe old age of twenty-seven. (It’s nice to get these things out of the way early.) I adhere to the views I expressed then, of course.

I raised the seemingly outrageous (for those days) hypothetical that, by the same reasoning, the IRS could withdraw the tax-exempt status of the Catholic Church because it discriminated against women in excluding them from the priesthood. Hosanna-Tabor probably drives a stake through the heart of that particular hypothetical monster – because the hypothetical concerns a church’s selection of its clergy – but otherwise would appear to leave the core of Bob Jones University intact. If Bob Jones University’s reasoning is right, there seems to be no reason in principle why the IRS – absent an administration commitment or a statutory prohibition – could not take action to withdraw the tax-exempt status of a religious college or university that declined to recognize, accommodate or support same-sex marriage for members of its faculty, staff, and student body. That was the premise of Justice Samuel Alito’s famous question to the Solicitor General, who accepted the premise and, seemingly, the logic of the conclusion. 

Some more ancient history: In 1984, while I was a law student, I summer-clerked at the Solicitor General’s office. (Alito was a young Assistant to the Solicitor General at the time.) Bob Jones University was a fresh controversy from the previous year. The Reagan administration’s brief had denied the IRS’s authority to take the action it did, but also argued that the Free Exercise Clause otherwise would supply no defense to the IRS action. The “Acting Solicitor General,” Larry Wallace, a career Deputy Solicitor General, had added an asterisk footnote noting his disagreement with the administration brief’s position on the first question – itself a most irregular act (and the subject of some intra-office discussion more than a year later).

(A not-entirely-irrelevant aside: In my view, the administration’s disavowal of the IRS’s authority to take the action it did should have settled the matter, depriving the courts of an Article III case or controversy. The contrary view, argued by the previous administration, had prevailed in the court below, however. The Supreme Court appointed counsel to represent and defend the judgment below as amicus. It held that the case remained justiciable because the D.C. Circuit had, in a different case, issued an injunction against the administration’s position. The Supreme Court proceeded to rule in favor of an executive branch position not defended by the executive branch.)  

There was an “Acting Solicitor General” in the Bob Jones University case because the Solicitor General had recused himself from the matter, based (if I recall correctly) on his association with Brigham Young University and the Latter-Day Saints (Mormon) church – which had had, at one time, some analogous but non-identical issues. The Solicitor General (with whom I occasionally had the pleasure to go running on the Washington Mall during lunch hours, and could almost keep up) was the wonderful Rex E. Lee, Senator Mike Lee’s father.

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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