How a California bill became a lesson in compromise

A proposed anti-discrimination measure in California may have become a model for compromise in the conflict between religious liberty and gender equality.

Since its introduction in February, Senate Bill 1146 has been at the center of heated debate between faith-based private universities and gender equality advocates across the state – and the nation. Among other things, the measure would have made it easier for lesbian, gay, bisexual, and transgender (LGBT) students at religious colleges to sue for discrimination if they are penalized for violating church doctrine.

But on Wednesday, faced with an opposition campaign mounted by religious groups nationwide, lead author Sen. Ricardo Lara (D) of Bell Gardens pulled that particular provision of the bill. “I don’t want to just rush a bill that’s going to have unintended consequences so I want to take a break to really study this issue further,” he told the Los Angeles Times.

Suddenly the bill, for months a source of bitter division, became compromise legislation that both sides could support. Gender equality advocates won provisions that would compel religious colleges to disclose their reasons for applying for exemptions to federal anti-discrimination law. They would have to inform students, parents, faculty, employees, and the California Student Aid Commission. 

At the same time, religious schools no longer face an increased risk of litigation because of those exemptions.

“I think this last round of amendments is exactly what we had hoped would happen,” says Jennifer Walsh, dean of the College of Liberal Arts and Sciences at Azusa Pacific University, an Evangelical Christian institution in Azusa, Calif., just northeast of Los Angeles. “We were pleased we could find some common ground in that area and have moved our position from opposing the bill unless amended, to supporting it.”

“I think it’s a good step forward,” says Alice Kessler, legislative consultant for Equality California, a statewide LGBT civil rights group. “We absolutely still support the bill.”

The truce is tentative at best. Disclosure and transparency are important, Ms. Kessler notes, but private religious colleges that discriminate against LGBT students, faculty, and employees remain a concern. Under federal law, no school can discriminate against students, including for gender identity, and still receive government funds. But Title IX of the Education Amendments of 1972 does allow religious schools to apply for an exemption if they feel that compliance conflicts with their religious values. 

And faith-based colleges remain defensive of their right to maintain their religious beliefs at their own institutions.

“It’s difficult because there are competing [important] rights on both sides,” says Thomas Berg, a professor of law and public policy who specializes in religious freedom issues at the University of St. Thomas in Minneapolis. “In order for the two rights to coexist, you can’t take each right to its extreme conclusion.”

S.B. 1146 shows that “there are principled ways to strike balances,” he says.

Cultural clash

Since the Supreme Court ruled last year that same-sex marriage is a constitutional right, advocates of gender equality and religious freedom have engaged in increasingly heated battles to further protect members of their community. Religious conservatives have dug in, worried that just preserving their traditional values would be viewed as discrimination.

The result has been a cultural clash that has erupted in courtrooms, restaurants, and schools across the country.

The battle over S.B. 1146 was no different. Senator Lara first drafted the bill in response to a Human Rights Campaign report in December that found a growing number of schools nationally were applying for – and receiving – Title IX exemptions on the basis of religious beliefs.

In 2013, only one school received an exemption from the DOE; today 43 schools have been granted exemptions, six of them in California, according to the HRC report. Stories of students getting disciplined for being gay began proliferating.

One young man who had previously written about getting expelled from William Jessup University in 2013 because he was living with his same-sex partner came out in support of Lara’s legislation. The school, which said his behavior went against their student conduct policy prohibiting cohabitation, has asserted that it does not discriminate against students based on sexual orientation.

“I’m grateful for what Senator Lara’s doing,” says Anthony Villareal, who adds that he had wanted to attend a Christian university because he had hoped religion would help him face his struggle with his sexual orientation. “I thought maybe in Jessup, I could grow more in faith and put my sexual identity aside.”

Now Mr. Villareal, who remains a Christian, says he has embraced his sexual identity and joined the effort to pass S.B. 1146 in its previous form. He says LGBT students who have been through what he has deserve compensation.

“People who were put in my position, in debt, expelled, facing emotional distress – no amount of money would make up for [that],” he says. “But it would help. Those students have a right to be compensated for what they had to go through.”

The backlash

A coalition of nonprofits and religious schools responded sharply to the original bill. By forcing religious schools to choose between compromising their faith or losing state-funded financial assistance, S.B. 1146 would hurt students who needed that funding to attend those colleges, they said.

“[The bill] would make it impossible to use Cal Grants at many of the state’s religious colleges,” says Daniel Blomberg, an attorney for The Becket Fund, a Washington-based conservative law firm that helped mount the campaign against the bill. “The impact would have been to deprive these low-income minority students from attending the religious institution of their choice.”

That could make it harder for those students to access the quality education religious colleges provide, the coalition argued. The four-year graduation rate in the religious schools that would be affected by the bill was 59 percent, it claimed, compared with just 28 percent at the state colleges that students would likely have to transfer to.

Students spoke out, as well. 

“If I had one thing to say to someone considering S.B. 1146, it would be to really understand the impact you’re having on people’s education,” Deja Alewine, who was raised by a single mother and is now a junior on a Cal Grant studying criminal justice and psychology at Fresno Pacific University, said in a video. “You’re impacting someone’s life and their future.”

The campaign worked. Last week, Sen. Mark Leno (D) of San Francisco, who coauthored the measure, pulled his name from the bill. On Wednesday, Lara announced he would drop the provision on discrimination lawsuits. In all, the negotiations took about six months and seven amendments, not including Wednesday's.

The compromise

It came down to the best interests of students and the public, says Professor Walsh at Azusa, who engaged in conversations with lawmakers and their staff regarding amendments to the bill. Nobody wanted to see young people lose out on opportunities for education because of anti-discrimination efforts. At the same time, everyone agreed that as long as a private religious school was accepting government funding, they needed to be transparent – to students, faculty, and taxpayers – about their goals and intentions.

It’s not a perfect resolution, says Kessler at Equality California, who points out that the problems noted in the HRC report remain. But the compromise is a step forward, she adds – and an important one.

Both sides hope to see the Assembly pass the bill, perhaps as soon as Aug. 19.

It shows us “how to find space for people with divergent beliefs. We know it’s not a one-size-fits-all approach,” Walsh says. “It’s a good model for states and communities for [asking], ‘How do we do this well?’ ”