Bob Jones Redux: The Question SG Verrilli Was Unwilling to Answer in Obergefell Now Needs to Be Answered
Obergefell v. Hodges was decided about 6 years ago. During the oral argument, Justice Alito posed a critical question to Solicitor General Don Verrilli. He asked whether religious colleges that favor traditional marriage could lose their tax exempt status. Verrilli was unwilling, or perhaps unable, to answer the question. Bill Eskridge and Chris Riano write in their excellent new book that “the issue had never come up in his preparation for the argument.” Here is the exchange.
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is –it is going to be an issue.
Six years later, Alito’s question is no longer “going to be an issue.” It is “an issue.”
This week, 30 LGBTQ students filed a class action complaint against the Department of Education in the District of Oregon. The plaintiffs allege:
The U.S. Department of Education is duty-bound by Title IX and the U.S. Constitution to protect sexual and gender minority students at taxpayer-funded colleges and universities, including private and religious educational institutions that receive federal funding. The religious exemption to Title IX, however, seemingly permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation
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