In early October, a district court in California dismissed a lawsuit against Fuller Theological Seminary brought by two students. Both students were dismissed from FTS for being in a same-sex marriage — thereby violating Fuller’s Community Standards. One student, Nathan Brittsan, was about to begin classes online in 2017. He submitted a name change form to indicate that he had recently been married and his admission was rescinded. The other, Joanna Maxon, was already a Fuller student studying online. During her time as a student, she divorced her husband, began a same-sex relationship, and married her partner after Obergefell. Upon submitting a joint tax return supporting her financial aid materials, FTS noticed that she was in a same-sex marriage and dismissed her from the school. The Sexual Standards part of the Community Standards website reads as follows:
Fuller Theological Seminary believes that sexual union must be reserved for marriage, which is the covenant union between one man and one woman, and that sexual abstinence is required for the unmarried. The seminary believes premarital, extramarital, and homosexual forms of explicit sexual conduct to be inconsistent with the teaching of Scripture. Consequently, the seminary expects all members of its community–students, faculty, administrators/managers, staff, and trustees–to abstain from what it holds to be unbiblical sexual practices. (emphasis mine)
There are three things I want to unpack in this case. First, I want to explore the legal understandings of religious belief within religious organizations. Second, we need to reframe our understanding of community standards with a decentralized population. Third, we need to see this case from the context of a changing student body.
Inconsistent with the teaching of Scripture
The heart of Fuller’s defense, as expressed by the Becket Fund for Religious Liberty, is that Fuller is a religious institution that has a right to protect its religious views. The institution holds that its sexual standards are the only possibility consistent with Scripture and that to force them to operate counter to those is a clear first amendment violation.
Courts have a very long history of not wanting to rule on the validity of particular religious positions. As a result, the challenges have tended to go to whether the organization fully supports the claimed position. One of the matters raised in the case was whether FTS is a religious organization or an educational institution. (Under the Obama DOE Office of Civil Rights, exemptions were granted to institutions sponsored by denominational bodies but not nondenominational bodies like FTS. That interpretation changed early in the Trump administration.)
In the dismissal, the court ruled that FTS was both a religious and educational institution and could set standards accordingly. This may be a win in the short term but I’d argue that its status is more uncertain in the long term.
Council for Christian Colleges and University (CCCU) president Shirley Hoogstra wrote the week after the decision that “Americans cannot rely solely on the courts to defend their right to exercise faith in the public square.” She goes on to argue for the need for legislative responses, advocating (as she has for years) the Fairness for All act in contrast to the Equality Act passed by the House. The former, built on the Utah compromise, would pair nondiscrimination legislation with robust religious freedom protections.
For the record, I think the world of Shirley Hoogstra. I have had the pleasure of knowing nearly every president the CCCU has had (missed the first one). She is by far the best, most forward thinking, leader of the bunch. Her skill at navigating the 2015 Goshen-Union fight — which could easily have destroyed the CCCU altogether — was extremely impressive.
Yet, I don’t think her read on the current situation is taking into consideration other changes coming down the pike. First, if Biden wins and the Democrats take the Senate, the Equality Act is far more likely to become law. Second, since the DOE policy reflects the administration, I’d expect the Title IX rule to revert back to where it was in the Obama administration, making nondenominational religious organizations better articulate their positions — the assumption being that if they decided that marriage was only between a man and a woman, they have the freedom to revisit that.
Additionally, the default assumption of validity of religious views on same-sex marriage may get harder to maintain as time goes on. According to the most recent American Values survey from PRRI, majorities of every religious group except White Evangelicals now support same-sex marriage. That would make future litigation against evangelical educational institutions more likely.
I do agree that a win at the Circuit Court level is not a final victory. Whether these students appeal or not, similar cases will be likely and will draw upon lessons in this case make stronger arguments.
Community Standards and In Loco Parentis
A second aspect of this case that was curious to me was that these two students were taking FTS courses online and lived in Northern California and Texas, far from the Fuller campus in Pasadena.
Fuller is not unusual in this regard. Christian schools across the country would not survive without their online operations. But what does it mean for a student to abide by community standards? Is their behavior reflecting poorly on FTS? Does anybody even know that they are taking Fuller courses?
Christian schools adopted Community Standards for a variety of reasons. Part of this was to draw separation from the broader culture. Another was to provide a safe space to study where students could assume that others are like them. (There is a substantive educational critique to be made here but I’ll let it go.) One can argue (as Becket did) that the students knew the rules when they enrolled and so they should have foreseen their removal from the program.
That Community Standards shape a particular community relates to the old principle of in loco parentis — that the school is providing a trusting environment parents would have provided. The whole notion of in loco parentis changed over 50 years ago when students were determined to be of legal age, but its echoes remain. I’d argue that it’s particularly problematic when you only offer graduate programs to adults.
To me, the steps taken by FTS regarding Brittsan and Maxon were legitimate but selective. How often does an institution act upon a name change form, a tax statement, or a social media post? What is the protection here against capricious actions on the par of the institution?
There are, no doubt, remote students currently enrolled at FTS (and like schools) who are living with — and having sex with — their significant other. But there is no form that asks who else is living at your address. Nobody is perusing Instagram posts to see the lovely hotel room the student and the other shared on their recent vacation.
I’m no legal scholar, but I think that there are major 14th amendment equal protection problems exposed in this case. If Christian educational institutions are going to presume that all students are in harmony with Community Standards Statements, much more oversight and intervention will be required. At least if they are to be able to defend the claim that they aren’t singling out queer students.
“The Call is Coming from Inside the House”
Which brings me to my third observation — Brittsan and Maxon were Christians who desired the educational opportunity FTS provided. Brittsan is a minister in the American Baptist Church, an affirming denomination. He was pursuing his MDiv from FTS to qualify for ordination. Clearly, he would take issue with Fuller’s claim that their sexual policy is the only Scriptural one. I recently read Guthrie Graves-Fitzsimmon’s Just Faith, in which he shows his theological and scriptural chops while fully affirming the legitimacy of his sexual orientation and his marriage.
There have been other significant developments since the FTS case was dismissed. One week after the decision, Calvin University’s student paper led with this headline — “I am Calvin University’s first openly gay student body president.” Last week, the Baylor student senate approved a resolution to support the official chartering of a LGBTQ+ group, Gamma Alpha Upsilon (if the administration agrees).
This is not particularly surprising. Similar stories can be found at a variety of Christian educational institutions. LGBTQ+ students are claiming their right to study in the faith based environments that have been offered to them since they were young. They know it can be a difficult road, but research shows that a majority of evangelicals between 18 and 35 supported same-sex marriage in 2018. So their peers are supporting them.
So while leaders like Hoogstra and organizations like the Becket Fund are focused on incursions on religious liberty claims from secular groups, the much larger challenge will be the shifting attitudes on the topic among the very people schools like Fuller hope to serve.