“It’s going to be an issue.”
You may recall those five words that were spoken by Solicitor General Donald Verrilli in the oral arguments phase of Obergefell v Hodges. Specifically, that sentence was Verrilli’s response to a question from Justice Alito about the tax-exempt status of private religious schools that continued to define marriage traditionally over and against the definition of the government. Justice Alito made a salient observation: If the Obama administration’s contention was that traditional marriage laws were analogous to racial segregation, wouldn’t schools that defined marriage traditionally be in the same category as those (such as Bob Jones University in the 1990s) who continued to enforce anti-segregation campus policies (and, thus, were ineligible for tax-exempt status)?
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