If Mr. Verrilli had been adequately prepared for this question, he would have given a better answer. The Bob Jones decision rested on the proposition that barring potential students from educational institutions based solely on their relations with someone of a different race was contrary to public policy, and therefore not charitable. Indeed it did contradict public policy, as the prior three decades of legislation and litigation on the subject had clearly showed.

No such settled policy exists with same-sex marriage and education, so Bob Jones doesn’t apply. If Loving v. Virginia, which in 1967 erased state prohibitions against interracial marriage, had been decided before Brown v. Board in 1954, Brown would still have been necessary to resolve the issue of segregation in education; so too with Obergefell v. Hodges.

This said, it is understandable that opponents of same-sex marriage would be unwilling to rely simply on legal reasoning. As part of a reasonable compromise that includes solid antidiscrimination provisions in education and housing, supporters of same-sex marriage should accept legislative language that prohibits the federal government from withholding or withdrawing tax exemptions from institutions solely on the basis of their opposition to Obergefell.