Beto O’Rourke Doesn’t Know Much About the Constitution

Beto O’Rourke Photo: Mario Tama/Getty Images

Beto O’Rourke is not going to be the president. Not this time, as Jonathan Frakes would put it. But as his campaign enters what must surely be its final stages, the candidate has begun to flail in increasingly more dramatic ways. In some cases, he is entertaining, and also correct. The National Rifle Association should probably lose its tax-exempt status, as he suggested a few weeks ago. The organization is clearly corrupt, an unofficial arm of the Republican Party; O’Rourke’s proposal was unusually blunt for a Democrat but not wrong per se.

At CNN’s LGBTQ town hall, however, O’Rourke’s need to distinguish himself from his peers got him into trouble. Asked by CNN’s Don Lemon if he believed that “religious institutions like colleges, churches, charities” should “lose their tax-exempt status if they oppose same-sex marriage,” O’Rourke answered in the affirmative. “There can be no reward, no benefit, no tax break for anyone, or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us,” he said. “So as president we’re going to make that a priority and we are going to stop those who are infringing on the rights of our fellow Americans.”

The internet tells me that it’s National Coming Out Day. Even if it weren’t, I would prefer to do almost anything but discuss the rights of churches that oppose basic rights for LGBTQ people. Their teachings are cancerous. They drive people to suicide. I grew up in these churches, and I wish it were socially unacceptable to belong to them. It offends me personally that their teachings occupy any corner of any human heart. For these reasons and more, I wish I could agree with O’Rourke.

I can’t. The Constitution has many problems, but the First Amendment is not among them. The same principle that dictates religious neutrality on the part of the federal government extends significant expressive freedom to churches. O’Rourke’s response is so broad that it would violate the Constitution if anyone ever implemented it.

His error is unnecessary, too, since there’s a lot the government could do to avoid privileging discrimination without violating anyone’s right to religious freedom. An O’Rourke administration could enforce the Johnson Amendment, which strips churches of their tax-exempt status if they campaign for a candidate. It could prohibit religious organizations from discriminating against LGBTQ people as part of federally funded programming. It could reconsider tax breaks for clergy, which do privilege ministers over other classes of taxpayer. It could take a harsher line on school voucher programs, which set public funding aside for religious schools: The public has no constitutional obligation to help anti-gay primary or secondary schools keep their lights on. I’d even argue that the same principle should apply to the use of Pell Grants and other public subsidies for attendance at anti-gay colleges or universities. The government ought to reserve its funding for educational institutions that serve the public at large; Liberty University does not meet that criteria.

But to strip a church’s tax-exempt status for its anti-gay principles is to penalize it for exercising its right to worship. O’Rourke runs afoul of the Constitution again when he suggests that charities should lose tax-exempt status if they discriminate. Again, O’Rourke is not going to be the president; his response, then, poses no threat to American churches of any stripe. He’s simply handed the Christian right a talking point it’ll use to bludgeon the left for years to come. Thank you, Beto!

Has Beto O’Rourke Heard of the First Amendment?