Your recent editorial (“Exempting the Church,” Mar. 14) made an excellent point: in the ongoing “clash of values” between Massachusetts and the Catholic Church over adoption by gays and lesbians: the interests of the State’s vulnerable children in need of adoption—the silent third party to this feud—should not be overlooked.
Nevertheless, I write to point out a course of action the piece’s authors overlooked—one that would allow the state to avoid this dilemma altogether. Massachusetts could amend its tax laws to revoke the favored tax status of private organizations incorporated under state law that discriminate based on sexual orientation. The federal tax code already provides for the revocation of favored tax treatment of otherwise tax-exempt private schools that practice racial discrimination, even for religious reasons. The Supreme Court, in Bob Jones University v. United States (1982), upheld the constitutionality of this provision against claims that it violates the First Amendment guarantee of religious freedom, noting that eradicating discrimination is a fundamental government interest and that mere revocation of special tax treatment “will not prevent those schools from observing their religious tenets.” Furthermore, in Employment Division v. Smith (1990), no less a conservative than Justice Antonin Scalia wrote for the Court that “an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”—let alone a law that does not prohibit such conduct, but merely refuses to grant it a special state subsidy. Based on these cases, then, it seems likely that revoking the state tax-exempt status of institutions that discriminate based on sexual orientation would pass constitutional muster.
If discrimination is truly as fundamental to these organizations’ missions as they claim, they would be perfectly free to put their money where their mouth is, so to speak, and forgo special tax treatment. With the extra tax revenue thus collected, Massachusetts could augment its non-discriminatory state-run adoption services more than enough to compensate for the Catholic Charities’ most un-Christian decision to exit the adoption field—without compromising the state’s commitment to non-discrimination.
JONAH M. KNOBLER ’03
March 14, 2006