Would California bill infringe on religious liberty of Christian colleges?

When the Supreme Court declared same-sex marriage a constitutional right last year, many religious conservatives worried that simply maintaining their traditional views could be considered acts of discrimination.

And now, as lawmakers in the blue-state bastion of California debate a bill that would limit the religious freedom exemptions of private colleges and universities, many are saying their fears are starting to come to pass.

The California legislation, passed by the state Senate in May and taken up by the state Assembly on Thursday, would allow lesbian, gay, bisexual, and transgender (LGBT) students to sue religious educational institutions if they were denied married student housing, dorms, or bathrooms consistent with their gender identities, or otherwise subject to rules of conduct that singled out their sexuality or identity.

“It just seems hard to believe that a state could punish a private, Christian educational institution for simply having behavioral expectations for their students and staff, and in accordance with their faith-based teachings,” says Chelsen Vicari, the Evangelical programs director at the Institute on Religion & Democracy in Washington, D.C. “This doesn’t make sense to me.”

Since the landmark Supreme Court ruling last June, religious conservatives and Republican lawmakers have worked to expand religious freedom laws – allowing florists, bakers, and, in some cases, even public clerks to opt out of participating in same-sex wedding ceremonies, if doing so violated their sincerely held religious beliefs.

It is an attempt to hold together traditional religious beliefs on marriage in a dramatically transformed social landscape, some scholars say. To many conservatives, such efforts stand within America’s traditions of pluralism and tolerance, as well its unique traditions of religious freedom.

In many ways, supporters of the California bill move in the opposite direction, seeking to expand a new social norm into the private spheres of religious institutions. They seek to require conservative religious institutions themselves to fully accommodate LGBT students, in a way akin to social mores about racial equality, or face legal sanctions. Only seminaries and schools who prepare students for ministry would maintain the long-held religious exemptions to certain federal and state antidiscrimination laws.

“These universities essentially have a license to discriminate, and students have absolutely no recourse,” said state Democratic Sen. Ricardo Lara, sponsor of the bill, in a hearing last week. “Universities are supposed to be a place where students feel safe and can learn without fear of discrimination or harassment.

Mississippi's opposite path

The constitutionality of both the red and, should the California bill become law, blue state paths are likely to have to be worked out in the courts, legal experts say.

On the same day the Assembly took up California’s bill, a federal judge issued a preliminary injunction blocking a Mississippi law an hour before it would have taken effect. Legal experts said Mississippi went further than any other state by allowing those with a moral, rather than religious, objection to refuse service to LGBT residents. It included protections for a wide array of professions including public clerks, foster care, and counseling services.

Calling it “a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity,” Judge Carlton Reeves said that by choosing particular beliefs for protection, the law unconstitutionally “put its thumb on the scale to favor some religious beliefs over others.”

In liberal California, legislators appear to be putting a legal thumb on religious beliefs that are said to constitute discrimination, some suggest.

The California bill also would require religious colleges that claim an exemption from federal and state antidiscrimination statutes to publicly disclose the reasons for seeking such exemptions in “prominent locations” around campus and on school websites. Schools would also need to disclose these reasons to all prospective students, and during all orientation programs every semester.

The California bill goes further than the federal government: This spring, the United States Department of Education included on its website a searchable database of colleges seeking federal religious exemptions to Title IX.

Furthermore, colleges would be required to submit any materials concerning their exemptions to California’s Student Aid Commission, which disburses state funding for students. The state commission would then maintain a list of all religious schools seeking exemptions, along with their reasons, and post it on the commission’s web site.

“Prospective students and employees have a right to know if the school they are considering attending or working at will treat them with dignity and respect, or will make them a target of discrimination,” said Rick Zbur, executive director of Equality California, in a statement.  

The new bill, Mr. Zbur said, “makes that bias public, and will inform students, faculty and staff at these academic institutions and allow individuals to protect themselves.”

Alarm at religious colleges

Republican lawmakers and the administrators of dozens of religious colleges and universities in California have reacted with alarm, seeing the bill not only as an aggressive encroachment on their fundamental religious liberties and right of free association, but a confirmation that last year’s Supreme Court ruling could make traditional views on marriage essentially against the law.

"This bill confirms those fears. The slippery slope has begun,” says state Sen. John Moorlach, a Republican representing a district in southern California, in an email. “[The bill] is an illustration of the building discrimination against religious entities in the U.S. [and] a direct assault on religious liberty.”

Barry Corey, president of the Evangelical institution Biola University in La Mirada, says his community’s behavioral expectations – including strict antibullying policies for all students – including LGBT students who chose to attend his school, does not mean it has to conform to changing cultural mores on sexual conduct and gender expression.

“Faith-based colleges and universities are not asking for the freedom to discriminate,” Mr. Corey wrote in an opinion piece in the Orange County Register this week. “We are asking for the constitutionally protected freedom to live according to deeply held and time-honored beliefs within a pluralistic society.

“Religious educational communities are valuable for a pluralistic democratic society insofar as we are allowed to be who we are and are not legislated to look, believe and behave in the same way as the dominant culture,” he continued, adding that society is stronger when traditional Jewish, Muslim, and Christian institutions can remain distinct. “If all institutions were forced to walk in homogenous lockstep in terms of belief and behavior, democratic society would falter, if not crumble.”

Whose discrimination?

But advocates of LGBT rights maintain the issue is actually similar to well-established mores regarding race. In a Supreme Court case in 1983, Bob Jones University, which forbade interracial dating and only admitted married blacks, was stripped of its tax exempt status and forced to pay millions in back taxes.

Conservatives question the validity of that comparison, citing Scripture.

“Scripture does not talk about marriage between races as sinful,” says Ms. Vicari at the Institute on Religion & Democracy. “There are expectations for Christian sexual ethics that simply can’t be ignored.

And for conservatives, the aggressive California bill could be a warning sign that those who hold traditional beliefs could themselves face discrimination and become social pariahs.

“This is not a new kind of intolerance, but it is a redirected one,” says state Senator Moorlach. “Restricting a private institution from adhering to its religious beliefs is a violation of their First Amendment rights and an act itself of intolerance. [This bill] does not safeguard against discrimination, but rather is a form of discrimination against religious liberty itself.”