On Thursday evening, “at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: ‘religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?’ O’Rourke answered ‘Yes’.” But O’Rourke’s dead wrong as a matter of politics, policy, and law, as I explain Friday post at Cato. I call his proposal “illiberal, anti-pluralist, inflammatory — and unconstitutional under current Supreme Court precedent,” and that’s just getting started. More: Bonnie Kristian/The Week; Charlie Nash, Mediaite (O’Rourke’s comments blasted by writers from across ideological spectrum). And: Dale Carpenter (principle of viewpoint neutrality in tax exemption law was vital to early gay rights movement; arguments O’Rourke uses against conservative Christians now are the arguments used against gays then).
And I’ve also published a new piece at The Bulwark on the legal arguments about whether the 1964 Civil Rights Act’s reference to “sex” should be construed to include sexual orientation and gender identity, a move I call “surprise plain meaning” and which is by no means unprecedented in the Supreme Court’s handling of employment discrimination law. More broadly, I examine and reject the notion that for the Court to ponder these questions is to put anyone’s “humanity up for debate.” Earlier on Bostock, Altitude Express, and Harris Funeral Home here, here, here, and here, and more from Dale Carpenter and Scott Shackford. Scott Greenfield responds.
For those keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated otherwise.