Tag: Mark Silk

The Equality Act, Christian Colleges, and LGBTQ+ Inclusion

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.

Will RFRA laws “lead towards anarchy”?

This is the first time I’ve found one of Antonin Scalia’s arguments particularly persuasive. I’ll explain in a minute.

Like nearly everyone else, I’ve been trying to make sense of Indiana’s RFRA law and its implications. There has been a surprising dispute about even the construction of the law. There are a number of articles claiming, as Governor Pence did, that the Indiana law is “just like the federal law signed by Bill Clinton” or “like scores of other states“. Here’s the central thrust of both the 1993 federal law and the Indiana law:

Federal

(a) IN GENERAL. — Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) EXCEPTION. — Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Indiana

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

So in the primary language, these two laws are fundamentally the same. Except where they aren’t.

The Indianapolis Star compared the Indiana law with the federal law.  The relevant differences aren’t in the central provision of the law but in the definitional and implementation items. First, the Indiana law takes a post-Hobby-Lobby definition of “person”, granting religious freedom rights to private businesses and non-profits. Second, the threshold for the burden on exercise is lowered from recourse after government action to the potential of a burden. In essence, it moves the timeframe from a complaint after the fact to a potential violation that has not yet occurred. Third, the Indiana law suggests that the infringement could happen “regardless of whether the state..is a party to the proceeding”. This opens the possibility of RFRA actions being taken between private parties.

So while the law looks the same on the surface, it isn’t the same. Given the Governor’s arguments, I have to wonder if the parallel wording was designed for exactly the defense that was given. Furthermore, the private arguments of some of the law’s most ardent supporters told a very different story, putting the hypothetical baker as the law’s beneficiary. The Indiana legislature and Governor Pence  today put non-discrimination language as a preamble to the law (which eliminates the baker), but it doesn’t change what I think is the central issue.

Digging into the specifics of the Indiana situation led me to explore the history of Free Exercise cases before the Supreme Court. The first case (Reynolds vs. United States) was about a polygamous Mormon using his religious beliefs as a defense against a bigamy charge. The court ruled that because the bigamy law applied to everyone, the religious belief was irrelevant.

A second major case (Sherbert) dealt with an Adventist woman whose employer fired her for not working on Saturday. Her unemployment claim was denied by the state of South Carolina. The court ruled that the state’s action constituted an undue burden on her religious expression.

A third case is the one that prompted the federal RFRA. Alfred Smith had used peyote as part of Native American religious exercise. As a result, he was fired from his job at a drug rehab clinic. When he applied for unemployment in Oregon he was denied. The court ruled that since the drug prohibition applied to all Oregonians and didn’t single out Native Americans, there was no primary burden on religious expression.

Which brings us back to Justice Scalia, who wrote the majority opinion in the Smith decision. Here are two relevantScalia paragraphs that seem to speak volumes about issues in the news in the last week:

“It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended….To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.’ To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.”

“… The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.” [Emphasis mine]

The federal RFRA law was designed in direct response to the Smith decision. But 20 years later, Scalia’s warnings sound remarkably prescient.

Mark Silk of Religion News Service wrote today that if the Smith decision had gone the other way, there might not have been an RFRA in response. I think he’s right. I’ll come back to why that’s the case.

But I want to argue that the problem with Indiana’s RFRA is inherent in the language of the law in the first place. The problem exists in the 1993 law and likely in all of the laws passed since then. The RFRA laws define religious exercise as “any exercise of religion,whether or not compelled by, or central to, a system of religious belief.” I’ve written before that a notion of religious belief separate from group practice is hard to understand. If we understood government infringement in terms of constitutional history, it would involve the limitation of a group’s central practice.

This is why the Sherbert decision makes sense. Worshipping on Saturday was a central issue to Adventists. In that regard, the use of peyote by Smith as part of religious ritual could have been defended, as long as this was established group practice. If, on the other hand, Smith and his friend had used the peyote as an individual option, the Oregon laws would hold. Furthermore, to suggest that “any” religious exercise — even if not central — is of equal weight simply defies logic.

A second problem with the RFRA laws is that they have a relatively open definition of religion. Past jurisprudence has extended the right of religious expression not only to minority religions (Holt vs. Hobbs, 2015, on beard length for Muslim Prisoners) but to nonbelievers as well (Torcaso vs. Watkins, Oregon 2014). News reports have already shown up in Indiana regarding the proposed Church of Cannabis and the Wiccan plan to dance naked at the state house on the next full moon.

While the Indiana law was championed by conservative Christians, it opens the door for a host of other unintended challenges as Jonathan Merritt observed last year. Satanic statues in Oklahoma and Florida have demonstrated that protections for conservative Christians can easily be co-opted by other groups. This may seem like an extreme example, but I can imagine an atheist group claiming religious exemption to a personhood amendment based on their “deeply held beliefs” about when life begins. In what way is that not coercion by the state?

The third problem with RFRA laws comes in the need for consistent application. Who decides which particular violation of one’s religion exercise should be pursued in court? Ben Corey wrote this tongue-in-cheek post about all the reasons why one could refuse to bake a wedding cake. If every possible violation of someone’s personal principles becomes an occasion for legal redress against the state, it seems we would rapidly approach the scenario that Justice Scalia described above.

Here’s my overall conclusion. The RFRA laws are hampered precisely because they are negative statements. Rather than attempting to carve out a safe place for religious practice in a pluralistic society where increasing numbers of people claim no religious affiliation, we’ve attempted to protect the status quo against incursion from the changing society.

This is doomed from the start. The sooner we can begin to discuss the legitimate role of religion (which will protect ministers and churches from performing weddings against their church’s discipline), the better we’ll be able to protect the legitimate rights of believers and nonbelievers alike.