Why can churches deny jobs to women and LGBTQ people?

Question: Why should a charitable organization subsidized by our government (no taxes) such as a church be allowed to refuse positions such as pastor or priest based solely on gender (no women allowed)?

Conversations about tax exemption are back in the news after Democratic presidential candidate Beto O’Rourke said in a recent town hall that religious groups should lose their tax-exempt status if they oppose same-sex marriage.

Conservative commentators quickly went after O’Rourke and religious groups denounced the idea.

Churches and religious organizations are included with nonprofits in the group of tax-exempt organizations. The majority of Americans, historically and today, are supportive of religion and believe it contributes to the social good, which is why they are included with charitable organizations in U.S. tax law. People can get tax deductions for supporting them because Americans decided the government should not have to do or fund everything in society, said Richard Foltin, senior researcher with the Freedom Forum Institute.

Churches do not receive special tax privileges by not having to pay since that same exemption is granted to other, non-religious nonprofits, Foltin said. They are not taxed because the government is wary about violating the First Amendment, another reason why churches do not have to file annual returns.

However, O’Rourke’s comment — and the larger idea embedded within it — is not without precedent.

In a case decided by the Supreme Court in 1983, the court ruled the Internal Revenue Service was correct in revoking Bob Jones University’s tax-exempt status because of the school’s racist and discriminatory policies. The court’s decision showed the First Amendment does not protect churches and religious organizations from discriminating, said Andrew Seidel, an attorney with the Freedom From Religion Foundation.

One reason why the Bob Jones decision has not been broadened to include religious organizations discriminating on the basis of sexual orientation or gender identity is because current federal law does not protect those classes like it does race.

That does not necessarily mean tax-exempt status could never be removed, Seidel said.

“Tax exemption is a privilege,” he said. “It is not a right. The government can attach strings to that privilege even for churches and other religious groups. … Right now, we’re treating churches differently in a way that’s not required by the Constitution. We are giving them this favored status, and it is absolutely not required.”

Unlike Foltin, Seidel said churches are given a special status in society. Churches are given a pass to promote ideas that secular society may see as hateful, such as denouncing people who are homosexual or saying women cannot hold leadership roles, and receive a tax break. Research has found the government could make more than $80 billion a year if it taxed churches and religious organizations.

However, building a legal case around removing tax-exemption status on the basis of discrimination is nearly impossible, Seidel said. Courts are not going to tell a church how to interpret scripture.

The current system is one way to balance a society of polarizing views, Foltin said. We cannot make pariahs of people in the LGBTQ community but we also cannot then make pariahs of people who have different views, he said.

“There has to be room in society for people to march to a different drummer,” Foltin said.

At the same time, a number of religions and Christian denominations allow same-sex marriage and female leadership, giving people options if they are looking for a church. The free market of religious ideas is also protected by the First Amendment, Foltin said.