Fact check: Respect for Marriage Act explicitly protects religious tax-exempt status

The House passed a bill on July 19, 2022, codifying federal protections for same-sex marriage amid growing concern among some lawmakers and advocates that the Supreme Court could revisit its landmark 2015 decision.
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The claim: IRS can use new bill to revoke tax-exempt status of churches that won't perform same-sex marriages

After the Supreme Court overturned Roe v. Wade, Justice Clarence Thomas wrote in a concurring opinion that past court cases protecting same-sex marriage, among other rights, should also be reconsidered.

Legislation dubbed the Respect for Marriage Act was introduced in Congress as a response to that possibility, passing the Senate on Nov. 29. The bill would guarantee federal recognition of same-sex marriages and require states to recognize legal same-sex marriages from other states, but it wouldn't compel states to issue marriage licenses to same-sex couples.

Some social media users are claiming the bill could also be used by the IRS to revoke the tax-exempt status of churches that refuse to support same-sex marriage.

"I got confused over the same sex marriage bill. I thought it was already legal,” reads a screenshot of a tweet posted on Instagram on Nov. 17 (direct link, archived link). “My cousin is gay and he got married years ago, so I looked into the bill. Ahhh, it will allow the IRS, to revoke the tax-exempt status of churches that hold fast to traditional marriage. Religiously affiliated adoption centers and foster care providers would be forced to close down for the same beliefs. And small business owners who choose to only support traditional marriage would be able to be sued under this law.”

The post garnered more than 100 likes in two weeks. The original tweet shown in the post was retweeted more than 10,000 times, and additional screenshots were posted to Facebook.

But these claims are wrong. The Respect for Marriage Act – which is expected to pass the House and be signed into law – cannot be used by the IRS to revoke the tax-exempt status of churches that don't support same-sex marriage, according to multiple legal experts. It explicitly says the opposite. The bill also does not apply to private businesses, but rather addresses government behavior on both the state and federal level.

USA TODAY reached out to the social media user who sent the original tweet as well as the social media users who shared the screenshot for comment.

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Bill says churches won't be required to perform same-sex marriages

Multiple legal experts told USA TODAY the claims made in the social media post are unfounded.

"The Respect for Marriage Act does not allow the IRS to revoke the tax-exempt status of a church that will not perform or host a same-sex marriage," Lloyd Mayer, a professor of law at the University of Notre Dame with expertise in the government regulation of nonprofits, including churches, told USA TODAY in an email.

This point is explicitly clarified in an amendment to the original bill that was announced on Nov. 15, prior to the dates the Instagram screenshot and the original tweet were posted.

"The amendment clarifies that the bill could not be used to deny or alter the tax-exempt status – or any other status... not arising from a marriage – for any otherwise eligible person or entity," Sen. Susan Collins, R-Maine, who promoted the amendments, said in a statement.

In the amended bill, Section 7(a) reads:

"Nothing in this Act, or any amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense, provided such benefit, status, or right does not arise from a marriage."

Thomas Berg, a constitutional law professor at the University of St. Thomas, who teaches at the institution's religious liberty appellate clinic, also told USA TODAY that the law cannot be used by the IRS to act against churches that refuse to perform same-sex marriages.

"The bill is clear that it gives the IRS no authority to revoke the tax-exempt status of religious organizations – not just churches, but any religious organization," he said in an email.

To the contrary, Section 6(b) of the Act, specifically says churches will not be required to host or perform a same-sex marriage, said Jon Davidson, a senior staff attorney at the ACLU.

Section 6(b) reads:

"Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action."

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Bill does not shut down religiously affiliated adoption and foster care providers

Contrary to the social media claim, the bill would not force religiously affiliated foster care providers and adoption centers to "close down," Davidson told USA TODAY in an email.

"There is nothing in the bill that explicitly or directly mandates the closure of religiously affiliated adoption centers and foster care providers if they refuse to acknowledge same-sex marriage," he said.

The bill also does not make new mandates about how such organizations treat same-sex couples.

"There is nothing in the bill that addresses in any way whether religiously affiliated adoption centers and foster care providers may refuse to provide services to same-sex couples," Davidson said. The bill "thus does not change existing law about whether religiously affiliated adoption centers and foster care providers must provide such services to such couples."

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Bill does not apply to for-profit businesses

The social media claim that the law could be used to sue private businesses is also wrong, said Davidson.

"Nothing in the bill addresses the question of for-profit business owners," he said. "To the contrary, the (bill) is focused on what the federal government and what states may and may not do."

Davidson also noted that discrimination lawsuits against for-profit businesses are already a reality and "pending litigation" irrespective of the new bill.

Berg agreed that the bill cannot be used to sue private businesses. Only entities "acting under color of state law" – typically government officials – can be sued under the Respect for Marriage Act, he said.

"This bill is silent on for-profit businesses," said Berg. "It doesn't address every religious-liberty issue – nor does it address every nondiscrimination claim by same-sex couples."

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Our rating: False

Based on our research, we rate FALSE the claim that the IRS can use the Respect for Marriage Act to revoke the tax-exempt status of churches that won't perform same-sex marriages. The bill explicitly states that it cannot be used to alter the tax-exempt status of churches. It also says that churches shall not be compelled to solemnize or celebrate same-sex marriage.

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This article originally appeared on USA TODAY: Fact check: Respect for Marriage Act protects church tax-exempt status