The next stage in the culture war over religion, fueled from the gains of recent years by social liberals in public opinion, a two term liberal Democratic presidency, and liberal judicial appointments, appears to be unfolding in the use of antidiscrimination doctrine to attack Christian institutions. Although threats do exist to the primary religious institutions – houses of worship – it is those that provide social services as a religious activity, namely religiously affiliated schools, hospitals, and charities that are most directly threatened. These have been a refuge for Christians, or other believers, from the secularization of the twentieth, and now twenty-first, centuries. Service to the poor and suffering and the education of the young are both Biblical commands, and thus, in the American rights-oriented context, should be understood as an exercise of religion. Heretofore our legal system has permitted religious education and social service without seriously impinging on their religious character. Now we may be seeing the beginning of the end of educational and social services that are in any serious way religious rather than secular.
For educational institutions, there are three notable areas which could be subject to attack: state aid to education, tax exempt status, and accreditation. State aid involves most notably state financial assistance to students through work-study programs or other assistance, the threat to tax exempt status comes in tying tax exemption to agreement with fundamental public policy objectives, the threat to accreditation represents the ultimate threat short of making specifically Christian educational institutions illegal.
That religious education should be legal at a primary and secondary level was determined by the Pierce decision in 1925, which concerned an effort at that time to suppress Catholic education. Federal law and regulation since that time has protected the right of religious schools to teach a distinctively religious curriculum. The position of anyone who teaches a religious curriculum is exempt from the antidiscrimination regime under the constitutional “ministerial exception,” while such an educational institution is exempt from antidiscrimination considerations as far as matters of religious affiliation are concerned.
What in religious institutions has not been protected from the antidiscrimination regime (except where the ministerial exception applies, as noted by the EEOC) are non-religious categories, race, sex, and now by extension, sexual orientation. It is this circumstance, originally established by the Civil Rights Act of 1964 and confirmed by the ominous Bob Jones University case, decided by the Supreme Court in 1983, which has given those hostile to the conservative Christian subculture in the contemporary world, and its possible influence on the wider culture, a weapon to attack that subculture using antidiscrimination law and policy.
The Bob Jones University decision, rendered by the Supreme Court in 1983, determined that a lower court was correct to take away the school’s tax exemption because its policy against interracial dating, although religiously based, was contrary to fundamental public policy. Thus, the key question of the case – does religious freedom prevail when the liberal/left conscience is offended – was clearly answered in the negative. In the thirty years since, this infringement of religious liberty has not caused grave problems, mainly because racial separation is not part of core Christian doctrine, and not doctrine at all for the great majority of believers. But the arrival of sexual orientation as a real or possible antidiscrimination category does present a terrible situation in which the religious character of an institution is gravely imperiled by antidiscrimination law and policy.
The attempt to make sexual orientation a federal employment nondiscrimination category has been advanced for more than a decade by the federal Employment Nondiscrimination Act (many states also have their own ENDAs). Fought for many years as a threat to the religious liberty of private employers, it nonetheless had a strong exemption for religious institutions. This became unacceptable in the past year to the cultural left in its polemic against religious liberty as the battle over liberty of conscience for businesses became intense, with the result that the Left withdrew its support for a bill with religious exemptions. But as with many other issues, the Obama Administration has tried to do with executive action what could not be achieved legislatively. While applying only to federal contractors, Obama’s executive order making sexual orientation a nondiscrimination category for federal contracts resulted in an (unsuccessful) outcry for religious exemptions. Among those strongly opposed was the United States Conference of Catholic Bishops. From one such appeal, to which the President of Gordon College in Wenham, Massachusetts affixed his signature, there resulted a fierce backlash in the press, as noted by Prof. Denny Burk of Southern Baptist Theological Seminary, shortly after the furor erupted. He also noted that no distinction was being drawn between sexual identity and behavior, an essential distinction for Christians that liberal/left partisans refuse to accept. In a separate article, Burk discussed the current claim of leftist legal scholars that antidiscrimination doctrine requires the government to disfavor any religious group which opposes the “equality” doctrine in any of the doctrine’s categories, not just race. This would mean, most importantly, that Christian sexual morality could not be a requirement for students, employees, or faculty (if it can be argued the ministerial exception does not apply to them), since in the liberal/left understanding of antidiscrimination doctrine, there can be no adverse judgments about behavior as well as identity.
Christian sexual morality involves, in addition to its prohibitions, recognition of only the two natural sexes and their separation outside of marriage to ensure their privacy and comfort. This heretofore universal practice, without which many people would consider their privacy intolerably invaded, is also under attack as part of the antidiscrimination program. Currently George Fox University, a Christian institution in Oregon was sued by a transgender student, demanding access to the housing facilities of the sex being transitioned to. Clear in the complaint against the Christian university and a similar one against California Baptist University is the claim that transsexuals may not be refused admission, although a religious school might have a doctrinal objection to sex changes. This refusal to respect mores contrary to the prevailing antidiscrimination regime at private, voluntary, religious institutions was recently supported by the New York Times, which, of course, reflects prevailing opinion of the Left. A somewhat similar situation occurred in 2011, when the Catholic University of America reestablished same-sex dorms. A lawsuit challenging the action was dismissed, but the fact that Catholic University is a private, voluntary, and religious institution, which until the present generation would have made it obvious to all that same-sex dorms were the school’s own business as a matter of religious freedom, no longer counts with an influential part of the population. Only a monolithic culture, that has accepted the sexual revolution, will do.
While the religious character of a Christian institution is seriously impaired, really to the point of not being Christian, if it acquiesces in abandoning sexual standards of behavior, not even this is the end of the line for secularists. The very idea of a Christian institution with an orthodox doctrinal commitment is held to violate “academic freedom,” which requires the “primacy of reason.” This was discussed by Alan Jacobs in a recent article in New Atlantis, who referred to such a claim by University of Pennsylvania professor Peter Conn. Jacobs correctly pointed out that a rationalist commitment (that reason must be unaided) is as much an act of faith as a frank commitment to particular religious doctrine, and that any serious raising of religious doctrine in a secular academic environment is as practically forbidden there as its denial would be formally forbidden in a religious academic institution.
Similar challenges are being seen in more socially liberal Canada against Trinity Western University, as discussed by IRD earlier this year. That school and other Christian institutions in Canada have been under pressure in recent years from educational and professional associations and from the general public, because of their orthodox Christian faith commitments (held to violate “academic freedom”) and social conservatism (held to violate “gay rights”). These Canadian schools have, however, so far prevailed with the authorities ruling on questions at issue to the degree that they are able to function as schools. But as Canadian society has continued to move to the left on social issues, their position is growing more tenuous. As is commonly and most effectively done in these situations, opponents of religious freedom make the claim that the doctrine and practices of conservative institutions are too severe, even “unchristian,” although they are well supported by the Bible and two thousand years of Christian practice. The presenting issue at the moment is accreditation of Trinity Western University’s proposed new law school in light of its opposition to homosexuality in doctrine and practice (people participating at the university sign an agreement to adhere to the prohibitions of Christian morality, including its prohibition against homosexuality). Canadian law societies therefore maintain they will not receive Trinity Western’s graduates. The school has maintained that it should not be penalized for its views, and does not violate current standards in Canada. The Canadian Broadcasting Corporation also briefly reviewed Trinity Western’s case.
Christian institutions should not continue to function if they are required to compromise in doctrine, or more likely, in practice, on Christian faith or morality. It may be that distinctively Christian educational or social service institutions will not be legally possible in the future. Committed Christians will then have to live out their lives without them, but that is the only faithful alternative, not continuing to function, either individually or corporately, in a compromised way. But even in that situation, we should continue to argue for our duty to God in serving Him according to His own standards and our right of conscience to once again have the free exercise of religion in educational and social services.