Should states support with your tax dollars private schools that discriminate against children on the basis of gender-orientation?
If you pay taxes in Georgia and in ten other states, your taxes are doing that.
First, some context.
In 1983 (after a number of suits and lower court rulings extending back years), in Bob Jones University v. United States, the Court held nearly unanimously that the First Amendment's religion clauses do not prevent the Internal Revenue Service from revoking the tax-exempt status of a religious university whose policies and practice are contrary to a compelling societal interest. In Bob Jones, the compelling interest was racial equality. (The IRS had not, before the 1970s, held universities to account in this way.)
Prior to 1971 BJU refused to admit Black applicants; for the next four years it would admit only married Black students. After 1975 BJU admitted Black students only if they had not married interracially and expelled those who were found to be part of an interracial couple and/or who advocated interracial marriage/dating. The university argued that it had a First Amendment-based religious right both to continue these policies and continue to have its donors receive federal tax deductions for their contributions. The South Carolina university, in other words, argued that tax dollars should support racial discrimination.
When you make a tax-deductible gift to a private institution, say, a private school or university, the rest of us effectively compensate for that revenue-lost to the government with our tax payments. That's true for every tax-deductible contribution. The good news is that there are not many instances in which our charitable donations raise serious, racially charged constitutional issues. In Bob Jones, however, the Court said that you and I were, in essence, subsidizing Bob Jones' racial discrimination and that because racial equality is a compelling societal interest, BJU could no longer, if it chose to continue to discriminate, take your tax dollars to do it. Bob Jones University chose to continue to discriminate and lose its tax-exempt status until the late 1980s when BJU President, Bob Jones III, defended the university's racism in an interview with Larry King. The backlash was severe and the school changed its policies.
What's important to understand is that the Court ruled that what BJU was doing must be held to a heightened level of judicial scrutiny because racial equality was and is, quite simply, that important a societal goal and government interest. The society's interest in racial equality, the Court said, substantially outweighed the burden the university would incur if it could no longer receive tax-deductible contributions.
Racial equality trumped the school's right to discriminate (and at the same time receive tax-exempt contributions) even if that discrimination was based on a sincerely held religious belief. The Court made clear too, that its holding applied to schools and not necessarily to churches.
The Court, however, has not yet ruled that ending discrimination against LGBT individuals is important enough a societal interest to hold gender-based discrimination to a similarly heightened level of judicial scrutiny so as to invalidate your taxes being used to subsidize private schools' discrimination against LGBT students. It should. Perhaps the rulings later this term on marriage rights will help pave a path to an equal level of scrutiny.
Here's what's happening, right now, with your tax dollars in eleven states.
Today, in Georgia and in ten other states, programs have been set up, some as early as the late 1990s, to fund scholarships of roughly $4,000 each to private religious schools. Numbers of them discriminate openly against LGBT children and families. Kim Severson in Monday's New York Times reports that, for example, at one private school not far from Atlanta, a school receiving tax funds from all Georgians, will expel a student for:
. what it calls "homosexual behavior"; and/or
. an "identifying statement" (for example, "I think I may be gay; I'm not sure.").
Another Georgia private school receiving tax money will boot a child if:
. s/he identifies as gay or lesbian, and/or
. is seen "as supporting" a friend who is said to be a gay or a lesbian individual.
There are 115 such religious schools in Georgia now receiving tax dollars to offset scholarship/tax credit grant monies.
In Pennsylvania a teacher at a private Christian school was cashiered when her son came out on his Facebook page. The school settled with the teacher rather than face court action.
Some of these schools' policies state that a child will be thrown out if s/he has gay or lesbian parents or guardians.
Georgia believes its program is legal because the tuition money does not go directly from state tax coffers to families or to schools but through foundations which then hand the state-subsidized tuitions to the religious schools directly. In Georgia, $170 million in state taxes has gone to these religious schools by way of these foundations since 2008.
Yet think: if this public money were being sent to public schools and the public school boards chose to discriminate as to race or as to gender-orientation, the courts would fast shut the scheme down. And realize, too, that it's not enough to say that LGBT kids/families could easily ignore these schools. There are more interests here than those of individual students (some of whom, in fact, may have only one of these schools as an alternative to an otherwise unsafe public school environment).
The justice-interests here are individual and societal.
Proponents of these dodges claim they're constitutional because all kinds of religious schools are eligible for the state funding. But that hardly anwers the fundamental issue.
Your taxes ought never support bigotry cloaked in religion regardless of your money's route from your state treasury to religious school bank accounts. Your taxes ought never support, in the name of religion, any discrimination against and demonization of racial minorities or LGBT kids. The law must, and soon, catch up.
You may wish to find out if your state taxes are being used this way.