Back in March, the House of Representatives passed the Equality Act extending civil rights protections to gay and transgender Americans. Passing on a nearly party line vote (3 Republicans joined the Democrats), it moves to the Senate for consideration. As the linked text shows, the legislation bans discrimination based on sexual orientation or gender identity (SOGI) in hiring, housing, and public accommodations like restaurants.
Christian college leaders and conservative legal groups have raised ongoing concerns about the legislation. Some would prefer the Freedom For All legislation based on what is known as the Utah Compromise. FFA would extend civil rights protections to LGBTQ+ individuals on the above issues but carve out a religious exemption that leaves churches and religious organizations like Christian Colleges exempt from the impact of the nondiscrimination law. It’s kind of a stretch to call this a compromise, since the religious groups would not be giving anything up. Of course, some religious groups oppose even the FFA as they see any recognition of LGBTQ+ populations as a slippery slope that must be avoided at all costs.
The primary concern from conservative Christian leaders is that the bill that passed the House denies them protections under the Religious Freedom Restoration Act. In other words, there would no longer be a presumption of a set-aside for religious groups. Numerous Christian college presidents have claimed that should the Equality Act become law, it would mean that the schools could no longer pursue their mission, would be required to allow transgender students to live in dorms consistent with their gender identity, and deny students access to Pell Grants and Subsidized Student Loans (based on an interpretation of the 70s-era Bob Jones University decision).
To be fair, most of these leaders also go out of their way to affirm that all people reflect the image of God. In doing so, however, they tend to rely on scriptural interpretation that supports their prior claims. For example, reference to Genesis 1: 27 says “So God created mankind in his own image, in the image of God he created them; male and female he created them (NIV).” But where the focus could be on the created image in all, these leaders place priority on the last clause, effectively negating the broader intent. This clause is used to eliminate the legitimacy of the transgender population. Similar defenses are raised with regard to Matthew 19: 6, when Jesus quotes the Genesis passage and explains that “a man will leave his father and mother and be united with his wife and the two shall become one flesh (NIV).” The literal focus on men and women actually takes away from the focus on long-term commitment, especially since the context of the chapter is about divorce.
Yet under the guise of the nebulous “deeply held religious beliefs” religious freedom protections are claimed. Never mind that these very verses would be deeply meaningful to a same-sex couple who has decided to make a lifelong commitment. Because “we believe the Bible” can be used to trump other arguments.
Christian colleges would do well to pay more attention to the theological frameworks that are deeply held by queer Christians. It would go a long way toward actual engagement, if these leaders were serious about celebrating the Imago Dei and resulting dignity of all.
There is another problem with the claims made by Christian College leaders. They are based on the assumption that the Equality Act that passed the House will pass the Senate in its current form. A refresher from Schoolhouse Rock seems to be in order. The Senate is divided 50-50 and the Equality Act will not be considered without the support of 60 senators to overcome cloture. That is practically impossible to accomplish and the RFRA protections would almost certainly be added back. But opposing the Equality Act is useful in demonstrating one’s conservative credentials, keeping donors and trustees happy, and positioning the college as fighting the good fight in the culture wars.
Let’s play out their concerns about the Equality Act a little further. What would happen if RFRA protections were not present? It would open the door for discrimination lawsuits against religious organizations. It would be up to the courts to determine the ability of Christian Colleges to maintain what they believe are mission-central policies. As Mark Silk has observed, the current Supreme Court is the most friendly to religious freedom arguments in recent history and is especially favorable to conservative Christianity. During the Covid pandemic, SCOTUS has decided against the state in favor of religious groups in nearly every case, creating new requirements that go far beyond what the 1990 Smith decision held regarding “generally applicable laws.” Religion seems poised to win most cases of external restrictions placed upon religious organizations.
It’s worth considering that the real impetus for change regarding LGBTQ+ inclusion at Christian Colleges and religious organizations comes not from the force of government but from within their own constituencies.
Recent developments have shown how ignoring the internal question may no longer be possible. Four weeks ago a group of 35 current and former Christian College students sued the Department of Education over the practice of granting religious exemptions to existing nondiscrimination laws. Their lawsuit documents the variety of ways that the policies of the schools led directly to discriminatory harm for these students, including bullying and required counseling. I haven’t heard any updates since the original stories but I expect the number of individuals joining the class action suit to grow in coming months.
This lawsuit alleging discrimination based on SOGI status is particularly fraught in light of the SCOTUS’ 6-3 Bostock decision. In an opinion authored by Trump appointee Neil Gorsuch, it ruled that employment discrimination based on sexual orientation was a violation of Title VII of the Civil Rights Act. While biblical interpretation may pass muster under broad religious liberty claims, discrimination potentially will be seen differently by the court.
I recently read Oklahoma State sociologist Jonathan Coley’s Gay on God’s Campus — a sociological examination of how students at four religious schools (Goshen, Belmont, Catholic U, and Loyola-Chicago) advocated for LGBTQ+ engagement. While the patterns differed somewhat across the schools and the interviews, it was clear that the gay students at those schools had picked them because of their religious commitments. In fact, it seemed to me that the very nature of the Christian community fostered by those schools allowed students a safe transition to come out to their friends and family.
It is also true that LGBTQ+ inclusion has become important to many others in the student population. I’ve often reminded people that Massachusetts legalized same-sex marriage in 2004, when today’s college seniors were five years old. Straight allies have had gay friends at school for most of their lives.
Change is bubbling up on Christian College campuses, whether the leaders want it to come or not. After an adjunct faculty member was denied a full-time position at Seattle Pacific for being in a same-sex relationship, students and faculty pushed for a revision in the school’s human sexuality statement. The trustees refused to consider revising the statement and the student paper advocated for dramatic steps in reaction including discouraging donors and suggesting students sit out the fall 2021 semester. Nearly three-quarters of the faculty supported a no-confidence motion directed toward the trustees.
There’s an interesting anecdote in Jonathan Coley’s book. Belmont had long held the same “traditional” stance on sexuality that other Christian Colleges had held. The student organization that had formed in support of LGBTQ+ inclusion had argued that Christian schools should be places where tolerance and community are key. When a particularly influential donor and trustee took those arguments seriously, it resulted in a change in trustee policy. Not only has Belmont not suffered as a result of this change, it is known as one of the thriving educational institutions in the Nashville area.
It raises the possibility that Christian Colleges can find a path to LGBTQ+ inclusion. Rather than seeing the Equality Act as a cause to be battled against, they could see it as the potential path to new students who want a vibrant, faith-based education but refuse to put up with discrimination as a key component of the Christian College. There really isn’t any market distinctive to be gained by being just as intransigent as every other Christian College. Change won’t happen without struggle, but brave leadership (or, in its absence, action by students and faculty) can make real progress happen.