“… churches and religious organizations could lose their tax exemptions and be forced to discard their moral principles in order to be compliant with the law.”

- Protect Marriage Maine’s website

This is a common argument used in nationwide campaigns against same-sex marriage and one of the most chilling possibilities for religious groups opposed to allowing gay marriage.

We’ll focus on the claim of the possible loss of tax-exempt status. It’s the most concrete claim here.

Bob Emrich, chairman of Protect Marriage Maine, said the language used on his group’s website deliberately couches the threatening of tax-exempt status as something that won’t necessarily happen.

“No one really knows for sure what would happen,” he said. “I don’t think we should be taking that risk.”

Anything “could” happen. There needs to be an established likelihood for the claim to pass a Truth Test, especially one carrying this much weight.

First off, Maine gay-marriage advocates want voters to pass a law in November that says any refusal to perform a same-sex marriage “cannot be the basis for a lawsuit or liability and does not affect the tax-exempt status of the church, religious denomination or other religious institution.”

A leading national expert on religious intersections with marriage laws called it “legally impossible” to touch tax-exempt statuses for religious groups, especially in Maine, given the law’s protection. Even without the protection, Ira “Chip” Lupu, a professor at the George Washington University Law School, said that if it happened, it would likely be unconstitutional.

“We don’t impose anything on churches with respect to whom they have to marry. They can refuse to marry people who are divorced; they can refuse to marry people who are outside of their own faith,” Lupu said. “Houses of worship discriminate about who they want to marry all the time. No one would mess with that and it would probably be unconstitutional.”

A MaineToday Media analysis of laws and court decisions establishing gay marriage in the nation’s six states that allow it showed none have protected tax-exempt status explicitly. Maine would be the first.

“In some ways, the claim about losing tax exemption is unusually spurious in the face of that language,” Lupu said. “The law is so explicit about protecting tax-exempt status.”

We checked with human rights commissions in New Hampshire and Vermont, where same-sex marriage is allowed. Connecticut’s didn’t return a message and data was mostly unavailable by press time in Iowa and Massachusetts. There were no gay-marriage related claims against religious organizations in any of the states.

In Vermont, the American Civil Liberties Union and the Vermont Human Rights Commission are fighting a case filed in 2011 when an inn in Lyndonville, Vt., refused to allow a same-sex wedding reception, according to the New York Times.

“That’s really as close as we’ve gotten” to a suit against a religious organization, said Robert Appel, executive director of the Vermont commission. They aren’t a religious organization, so there’s a chance they are subject to Vermont anti-discrimination laws.

Appel said he doesn’t discern any pattern in sexual-orientation claims since gay marriage became legal there. Joni Esperian, his equal in New Hampshire, said, “It really has been a non-issue here.”

Emrich wondered aloud if the law’s passage would affect religious freedom down the road, mentioning Bob Jones University vs. the United States, a 1983 Supreme Court decision in which the court upheld an IRS decision stripping a private, Christian university of its 501(c)3 tax-exempt status for excluding applicants involved in interracial marriage or dating. The school believes Scripture prohibits interracial romances.

“They lost their tax-exempt status about it,” Emrich said. “Why wouldn’t we expect that same kind of result?”

But a footnote in the decision says the court was only addressing “racial discrimination in education.” That’s a far cry from gay marriage in everything religious.

There are two cases that other gay-marriage opponents often cite: one is in New Mexico, where a wedding photographer was successfully sued in 2012 after she refused to photograph a same-sex couple. She’s appealing, according to The Washington Post.

The other is in New Jersey, where a church owned a boardwalk where couples often married. They refused permission for a same-sex couple to exchange vows there and lost a claim to the couple, according to the New York Times.

The New Jersey Division on Civil Rights began a discrimination investigation, which the church sued for in 2007. A judge halted the suit and the boardwalk lost tax-exempt status. The Times said the state ruled “it no longer met the requirements as a place open to all members of the public.”

But the photographer had a private business, not a religious organization. And the church had opened up its boardwalk to the public before rescinding that right to a specific group. That’s why they lost, not because they simply didn’t approve of gay weddings. 

Verdict: While the assertion’s language couches the potential effect on tax-exempt status as being something that “could” happen, there’s no factual or legal basis for likelihood and the case law here is a mix of apples and oranges. Many of the cases referenced here could well be won by gay couples now in Maine and aren’t marriage-related. Emrich and his group are mixing apples and oranges. Claims against religious people with businesses or religious groups on the basis of racial discrimination in education are not the same as gay-marriage claims against religious organizations. This is a scare tactic, plain and simple.

We rate this statement false.

Kennebec Journal Staff Writer Michael Shepherd can be contacted at 791-5632 or at:

mshepherd@mainetoday.com