SB 1146, the California legislation that threatens to destroy the Christian character of Christian colleges and universities in California with anti-discrimination policy pertaining to sex, discussed in IRD articles last month, and referred to by this writer in an article earlier this month, was reviewed in its major implications by Gregory Baylor of the Alliance Defending Freedom legal service organization, and John Jackson, President of William Jessup University, in Rocklin, California, one of the schools affected by the legislation, at a presentation at the Heritage Foundation on July 19.
Jennifer Marshall, Vice President of the Heritage Foundation with Heritage’s Institute for Family, Community, and Opportunity, began the presentation by noting that the legislation “comes in the wake of the Obama Administration’s expansion of Title IX nondiscrimination policy” (based on a 1972 law prohibiting discrimination based on sex) “to include ‘gender identity’” (an individual’s self-definition of the sex the individual identifies with). “The California legislation would significantly narrow religious schools’ exemption under similar state policy.” California SB 1146 would “jeopardize” religious schools’ ability to take advantage of state aid to students in the form of “Cal grants” (the state equivalent of the federal Pell grants) “if they make distinctions on the basis of religion, sexual orientation, or gender identity … Admissions, student conduct code, housing, and employment” are all affected. Marshall said the bill threatens diversity in American higher education and is taking the country and higher education in “the wrong direction.”
Gregory Baylor said he has been practicing religious liberty law for about twenty years and believes that SB 1146 “is one of the most significant threats that there has ever been to religious freedom, and specifically to the very existence of Christ-centered colleges in California.” The bill has passed the Senate in straight party-line vote in June and may come to a vote in the California Assembly next month. Executive action on bill may be possible by the end of September. The effective date if signed into law would be Jan. 1, 2017. The legislation is focused on the “Cal grant” system, which involves state financial aid to students and gives them a choice of attending any school in the state. Using the state aid, Californians can choose higher education at a public school, private secular school, or religious school. But a “nondiscrimination string” is “attached” to the Cal grant money, requiring the schools at which students attend who receive the money not to discriminate on the basis of protected categories in California law, including religion, sexual orientation, and now, gender identity. Non-discrimination has not been a problem in the past for religious schools due to the exemption in the law provided for religious schools. Baylor said that current law states that “any aspect of applying this law, if complying with that, would be inconsistent with the religious tenets of the school, then the school need not comply.” The existing law thus does not affect schools if its application would be contrary to school’s religious doctrine.
The proposed legislation does away with “that protection … freedom that the law has historically and consistently granted” and requires schools to publicize the fact that they have asked the federal government for exemption from federal Title IX provisions (which now, by executive action of the Obama Administration, includes gender identity). In a staggering assault on the religious character of schools in California, not only the hotly contentious area of sexual orientation and gender identity, but also religion was made a nondiscrimination category for these religious schools, effectively making them unable to enforce any religious standards (which the addition of sexual categories would accomplish for religious issues pertaining to sex).
Only seminaries and religion departments would be exempt from the law; Christian doctrine could not be integrated into the whole curriculum and life of the school, as many Christian schools have made a point of doing. Although the bill’s changing form makes it unclear exactly what is allowed to religious schools under the bill’s form at any moment, as originally written, and still very much at risk due to uncertainty about what the bill allows as a permissible exercise of religion, integration of faith into school life is threatened in such common features of Christian education as required chapel attendance, required Biblical studies or religion courses, preferential admission of students based on religious profession, religious affiliation or doctrinal requirements for faculty, and code of conduct (including sexual conduct) for anyone who is part of the school.
As noted by this writer in an earlier article, such “discrimination” would be the target of lawsuits if SB1146 passes, whether schools receive state aid or not. A summary of the legislation’s basic provisions has been published by the Pacific Justice Institute legal service organization. Notice in particular in PJI’s analysis that SB 1146 continues to allow separation of students by sex and marital status, but sex is determined by one’s “gender identity” (meaning the sex one believes one belongs to), and marriage now must include same-sex married couples. Also, Michael Peabody of ReligiousLiberty.TV, indicating that the bill has been amended to allow for some measure of discrimination by religion, maintains that the requirement of nondiscrimination against sexual orientation involved in SB 1146 and its permission of discrimination by religion results in a logical conflict, since discrimination against sexual orientation is a religious tenant for these schools. He also offers suggestions as to why the bill might be unconstitutional.
The legislation, Baylor claimed, is attempting to make two statements 1) that the schools’ doctrine about religious exclusivity and sexual purity is morally wrong, and 2) the state cannot be tainted by this oppressive morality. This kind of prohibition of religious and religiously based sexual standards at religious schools does not even exist in the more liberal environment of Canada, where Trinity Western University, struggling because of the religious and sexual requirements of its community covenant, recently won a provincial court ruling supporting the right of students to attend colleges with such regulations.
The basic controversy, Baylor said, is between “religious associational freedom” and “gay rights and transgender rights.” The latter term, however, this writer would note, commonly seems to mean that there can be no adverse judgment against behavior, which cannot be consistently applied to all persons, and really means that homosexual behavior is privileged against adverse judgment. Baylor said that the controversy should be resolved in the manner that California had resolved it, by protecting religious schools from policies that are contrary to their religious commitments. Sexual orientation discrimination is more like religious discrimination than racial discrimination, he claimed, since racial discrimination involves an immutable characteristic. Religious discrimination is “a religious community defining its boundaries, defining who it is by reference not only to beliefs, but also to practices.” It is like “a Catholic parish saying, ‘look we want our priest to be Catholic.’” It is not like a secular company saying that it will exclude persons of a particular religion. SB 1146, Baylor said, is not “bad because of what it portends, this is bad because of what it is.” He is also “worried that this will spread to other states.” Also, “this idea is common, that religious organizations should no longer be exempt” from sexual orientation and gender identity (SOGI) anti-discrimination laws and policies. And yet they must be exempt if their existence and activity is an exercise of religion, and the religion opposes homosexual behavior. There is also a concern that the federal government will become hostile to granting exemptions to Title IX.
William Jessup University President John Jackson said that America was founded on the belief that “rights do not come from government; those rights come from our creator.” This was recognized “in the earliest days of our nation …We don’t simply operate with ‘permission’ of the government, we live in a society that was established on the basis of those rights that were granted by our creator.” No religious organization hates, he said. All persons at Christian colleges are treated with “dignity and respect.” This is “an intentional reality.” This is “because of our religious convictions,” which say that “each and every human being is created in the image of God and therefore has value.” Religious people “throughout history,” have commonly “advocated for life … [and] compassion … Hospitals, orphanages, foster care, all the systems that we think about that provide care and support in our society came from religious people.” He claimed that “SB1146 is a blatant attempt by the State of California to discriminate” against religious institutions.
Jackson said that William Jessup University maintains good relations with secular educational institutions and people in them. This is not about the “red herring” of discrimination against LGBT students, he said. It is a coercive attempt to “disempower religious institutions from California society.” Schools are being discriminated against, he said, for their traditional view of sex. SB1146 is an attempt “to throttle, to disempower, to marginalize” religious schools. “One of the great things about California is that we have diversity,” Jackson said. Heretofore it has been possible to “navigate the course of our great state, and do so with respect for all persons.”
It might be added to Jackson’s comments that the sexual categories of antidiscrimination law and policy are nowhere mentioned in the Constitution, they are simply inferred from the Fourteenth Amendment, which can only be consistently applied to persons, not their behaviors. On the other hand, free exercise, and thus religious discrimination, which is necessarily part of the religious practice the First Amendment explicitly mentions, is quite clear in the Constitution.
What do religious institutions provide to California? Jackson asked. “Tens of thousands of students choose to attend religious institutions in California … If SB 1146 passes, the great possibility is that tens of thousands of students will not have the opportunity to attend religious institutions in California. Instead, they will be pushed into public institutions, into schools they have not chosen.” Ironically, considering that the rhetoric of anti-discrimination policy is focused on abuse and insecurity, Jackson said that one reason many choose religious institutions in California is that they provide a “safe environment.” They also provide a “faith affirming environment.” William Jessup University believes that during college “your spiritual life should thrive. Your faith should be built up, not torn down in college. Tragically, many people in California are embarrassed by that – they think that during college you should become less religious.” The university provides a “safe, religious environment,” and also a “diverse environment.” Passage of SB 1146, Jackson said, will result in more of what is already a problem, the “exporting” of students to other states, and the resulting loss of talent. He said that this is also happening with business enterprises, which are moving out of the state.
Jackson observed that California is the state that recently said that Christian organizations may not exist on state campuses if they require their “top officers” to be Christian. This is “insanity.” As Baylor also noted, the self-definition of a religious organization must permit it to set exclusive standards.
Baylor said that SB 1146 and its prohibitions of religious and religiously based sexual discrimination applies not only to students, but has been amended to apply to faculty and employees as well. “So if the bill passed in its current form, if a school is looking for a theology professor, it would be precluded from considering religion in its efforts to find a theology professor, or a dean of students, or a president.” The underlying idea, he believes, is really to attack the religious freedom of religious schools, that this freedom is not acceptable to the bill’s supporters, however civil the debate has been. However, Baylor said that he has been encouraged by the coming together of religious schools in their support of religious freedom.
Jackson commented that “it took a little while” on the issue of this legislation for religious institutions to come together. But now 18 religious institutions participate in communication about it every week, and thirty to forty religious institutions are cooperating in opposition to the bill. “The Constitution guarantees religious liberty, not just freedom of worship, throughout all of life,” he said.
Jackson observed that while religious institutions will suffer as a result of this anti-discrimination legislation, the ones “hurt the most” are disadvantaged citizens who want to go to a religious school. He said that 30% of students at William Jessup are Cal grant recipients. Religious schools will have a difficult decision to make if the legislation passes. Litigation is a certainty. William Jessup “will not change its policies … because they come from Biblical, religious convictions.” It is “loving and gracious” towards persons at the college. Legislation would require “gender fluidity” to be accepted. Concern is also what other states will do and what the federal government will do with Pell grants. “We are entering into a social era when we are seeing less and less tolerance, we are seeing greater and greater aggressive behavior, essentially saying ‘if you don’t conform to the prevailing state thinking, then you no longer are going to be able to have access to benefits and resources that are provided across the social structure.’” The bill’s sponsors are clear from conversations with them that they want “sexual orientation, heterosexual, homosexual, or bisexual to be fully permissible on the faith based campuses, but they also want gender identity” to be fully acceptable. This involves “the concept of gender fluidity” Thus, an individual has full access to accommodations for either sex, changing identity as he or she determines. It will affect “every single aspect of student life, housing, curricular, and co-curricular.”
In answer to a question, Jackson said that William Jessup does not discriminate with respect to sexual orientation, but does require chastity of all students. A few students have been expelled for heterosexual activity outside of marriage, but not, as it happens, for homosexual activity. The goal of discipline, Jackson said, is not punishment, but redemption, to bring violators into “right relationship with the Lord, and with the community.” Counseling services and student life staff work with students who are struggling with sexual issues. The “same rules” of chastity apply to commuter students as to residential students, Jackson said. He observed that no one looking at William Jessup’s website could be “confused” about the kind of school it is. He said school officials are “equally clear” with homosexual students about the chastity requirement. The school endeavors to have a “safe and affirming environment” but within the context of “our Biblical understandings.”
Jackson said that there must be a distinction made between sexual identity and behavior – but this is exactly what the U.S. Supreme Court has not accepted. As this writer has noted before, behavior based anti-discrimination law and policy is finally impossible to apply consistently, to do so would require all behaviors to be accepted and protected.
SB 1146 amounts to the substantial beginning of the destruction of the Christian subculture that developed in the twentieth century in response to secularization. Denial of liberty of conscience to businessmen and professionals in areas where their conscience conflicts with sexual license mandated by anti-discrimination law and policy is a major step in the destruction of that subculture, the destruction of Christian organizations that are faithful to Christian morality that SB 1146 mandates is another major step. As PJI stated in its analysis also linked to above, “if the state succeeds in controlling Christian colleges, there is every reason to believe the next targets will be Christian K-12 schools and other nonprofits.” Ultimately, the radicals opposed to traditional Christianity will move to police the internal life of churches and families.
But the struggle in California is crucial. Baylor noted that California had the “Utah” model, with organizations, but not individuals in private business, free to practice conscientious objection from homosexuality and gender identity claims. But this model is being attacked both in Utah and California. SB 1146 was recently amended to eliminate financial awards as a result of anti-discrimination lawsuits, but retaining court orders to change school policy. This shows the determination of the bill’s sponsors to de-Christianize these schools, and in particular, to eliminate their chastity requirements by state action. With Democratic control of the legislature and statehouse in California, and the determination of the bill’s sponsors to end chastity requirements at Christian schools, it would seem that passage of the bill is likely, followed by years of litigation.
It is crucially important to Christian integrity that Christian institutions not accept compromise with sin in their teaching, in their relation to the wider world, their internal organizational conduct, or in the lives of administrators, employees, faculty, or students. This is absolutely wrong, since it is disobedience to God, who requires separation from sin (II Cor. 6:17). But it is also important for everyone to see that Christian institutions will not surrender to the demand to give up either religious or chastity requirements under any circumstances, and if litigation is eventually unsuccessful, they will finally close. The Christian world which has managed to live in the secularized American world must be authentically Christian.
Likewise Christians must determine in their individual lives never to compromise with sinful requirements, and not to take part in compromised organizations that profess Christian commitment, but to take the penalty, and if necessary to live as an underclass. However much the cultural left will blame the loss of talent and service to society and personal suffering on religious dogma, Christians must insist that our commitment to obeying God is absolute, that both the Constitution and common sense instruct that the religious conscience is to be protected, not judged, and that the religious conscience can be reasonably accommodated in law, regardless of how anyone is offended by it, as it consistently has been in America.