Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
California Senate Bill 1146 (SB 1146) created an earthquake of controversy. “California Bill Would Ultimately Erase Religious Schools” ran a headline over at the Federalist. Last week a host of worthies—with competing religious and political views—jointly protested the bill via a public statement by the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention. The California state senator sponsoring SB 1146, Ricardo Lara, removed the bill’s controversial provision soon thereafter, as the Los Angeles Times reported. Was it the brilliance of the protest by the ERLC or just the new coordinated political activity by California’s private religious colleges and universities? Perhaps it’s both, but there’s reason to believe the arguments against the bill’s controversial provision won’t persuade its supporters. I want to offer an alternative, supplemental argument that may ultimately be unpersuasive—but it’s at least different.
First, the bill itself. The heart of the California bill largely removed exemptions religious institutions had under the state Equity in Higher Education Act and the federal Title IX. The only exemption was for institutions training clergy for religions with tenets that are incompatible with the application of the bill. Otherwise, any religious institution—Jewish, Protestant, Catholic, or Muslim—must arrange its institutional affairs so that gender choices and sexual activity are treated equally. As the bill read, an institution can enforce “rules of moral conduct” and establish “housing policies in accordance with these rules of moral conduct.” But there’s a catch: It can do so “if the rules are uniformly applicable to all students regardless of the student’s sexual orientation or gender identity.” A university could apply housing for married couples (to use an example from a prior version of the bill) only “if ‘married’ includes both married opposite-sex and married same-sex couples.”
In addition to political activism, the bill’s opponents make several claims. The ERLC statement makes—as best I can tell—two. First, there’s the question of religious freedom for California schools. Those holding religious beliefs on “contested matters related to human sexuality” will themselves be the recipients of discrimination. The signatories say the controversial provision (since removed) “would severely restrict the ability of religious education institutions to set expectations of belief and conduct that align with the institution’s religious tenets.” They make another claim: It would hurt low-income students and racial minorities. “If SB 1146 were to pass,” they say, “it would deny students’ ability to participate in state grant programs—programs that exist to help low-income students, and which are overwhelmingly used by racial minorities—at schools that are found in violation of the bill.” That’s not a concern now, because the state senator removed the controversial provision. But the issue isn’t going away, so it is worth talking about now, for the future.
Assuming the claims about state aid to students is true (why wouldn’t it be?), the ERLC statement strikes me as plausible. But there’s a deeper problem. I doubt these arguments will work. Here’s why: It protects the wrong people. As best I can tell, the concern of the ERLC statement is to protect religious institutions and low-income and minority groups. But that’s not the bill’s concern. The controversial provisions (now removed) sought to protect LGBT students. So that’s how its opponents should frame their argument. The problem with the bill isn’t just that it potentially hurts religious institutions. The problem isn’t just that it potentially hurts low-income and minority students. The problem with the controversial provision of SB 1146 is that it would have hurt the very people it sought to protect.
Does that sound farcical? It’s not. Consider this: Not every person who experiences same-sex attraction acts on it, or wants to do so. Not every person who acts on same-sex attraction wants to keep doing so, either. And not every person who resists same-sex attraction does so for the same reason.
We can’t just think about one kind of student, the LGBT student. There are at least three kinds of LGBT students at secular and religious institutions: those embracing their LGBT identity; those accepting it but not wanting to act on it, and, finally, those that move between the two. Let’s be candid: Different kinds of students will face different pressures at different institutions.
Consider a prospective student who fully embraces her LGBT identity. She enjoys her identity and does not want it stifled! It’s appropriate for religious institutions that would not affirm her identity to be explicit about not doing so. Students don’t want surprises, and that’s reasonable enough. Even if institutions were not so transparent, I find it hard to believe that a student whose sexual identity was crucial to her identity would simply not know what positions possible universities take on these issues. That’s not to say colleges have the right beliefs. It’s just to say the publicity requirement to save her from embarrassment has probably already been fulfilled. Given her self-understanding, let’s assume she goes to a state university or a private institution, where she will have her identity affirmed. After all, proof of LGBT sensitivity is a highly prized commodity: UCLA emphasizes the 20 year history of its resource center; Stanford’s center proudly proclaims both its internal and external awards.
But surely we know there are other kinds of students. Don’t we? Take a student who recognizes certain desires but decides not to act on them for religious reasons. Imagine an agnostic student raised by atheists who finds himself beginning to identify as a woman but who also finds Islam compelling. Then, when he’s a senior in high school, he makes a decision for Islam. As a consequence, he sets his sights for Zaytuna College. Zaytuna’s requirement that “outside class hours, students should study and socialize with members of their own gender” is not something he opposes. It is something he wants to embrace. Zaytuna says “these Islamic norms are observed at Zaytuna as an aid to spiritual growth as well as personal and academic development,” and this student agrees. He wants accountability and support in this fragile direction. He feels lonely and helpless. His teachers in his public high school supported his decision to identify as a woman, and they also supported his decision to convert to Islam. But they were less supportive when he said his newfound religion made claims on his moral life. By contrast, people at Zaytuna understand and support his decision. That’s why he wants to go there. That’s even why he feels safe there. You may think he’s mistaken. You may think Zaytuna’s mistaken. You may think Islam’s mistaken. But surely we all recognize that people making painful decisions need help and support, even if we disagree with them—perhaps most especially when we disagree with them.
Finally, take the student who arrives at college with one view but changes his mind. Perhaps the student in the previous paragraph decides he is a woman more than a Muslim. Or imagine a student from a conservative Christian background who has a same-sex experience at her Christian college and decides she is a lesbian. The focus, naturally, will be on what the college or university should do in these circumstances. That’s understandable. They are the authorities, right? But there’s an important question that’s not being asked. It’s one we need to ask: What position should the institution take towards those that came there for support in their difficult and painful decisions?
In our hypothetical case, everyone agrees that Zaytuna should respond to the one student with care and compassion. But Zaytuna has another responsibility, namely to help all the other students who are struggling to uphold their sincere religious commitments. The one student tells Zaytuna, “Give me a pass! Shape your rules to my experience.” The other students say, “Do what you promised. Help us.” If California says Zaytuna has no right to maintain its religious commitment, then it’s not just saying something against the institution. It’s saying something about these struggling students. California’s position would be that high school students who have sexual desires they don’t want to act on should not have even the possibility of institutional support. The message would be to go to a college that will embrace your desires but don’t go to a college that will help you resist them, even if that’s what you want to do. That’s not good for students wanting the freedom to figure out who they are, and who they want to be.
But what should be done with the one student? I think there are two options: Abide by the rules or leave. Neither option is desirable for the student in this position, but notice this point has nothing to do with gender or sexual orientation. If your school’s alcohol policy was attractive to you (or your parents!) when you were 18 but is much less so now that you’re 21, you can abide by the rules for a season, or you can leave. Of course, it’s not a desirable state of affairs for you, now that you’ve changed your mind. But the university’s mission, though it includes you, isn’t focused exclusively on you. Students with qualms about alcohol (even for reasons you may think are profoundly illegitimate) may have chosen the college just for that reason. You want freedom, and you can get it, when you graduate or when you transfer. Other students enjoy the rules and think they benefit from them. Perhaps they are mistaken, and everyone should drink alcohol. But students chose to be at Teetotaler U. for a reason. In fact, so did you.
Notice the advice to abide by the rules or leave is also true of a student who goes the other way. Consider the female student in our first example. She happily attends an LGBT affirming state university and becomes a counselor at the university’s highly regarded LGBT center. Then she decides, after a religious conversion, that she does not want to act on her desires. Though she used to help students explore their sexuality with a listening and affirming voice, she now she believes she has something more to offer: moral guidance. Presumably, if she tells people not to act out their sexual desires, she will not be welcome as a counselor anymore. Indeed, if she persists in her newfound opinions, she may not be welcome at the center. Though this student may feel mistreated, the center can say that she knew what they believed before she joined, and—this is the important parallel to what we’ve said so far—they still have many students who have entrusted themselves to the center’s care, and they need to keep their promises to them, to be opening and affirming, and not judgmental. They may be mistaken. They may be misguided. They may be doing great harm. But surely we all recognize that people making painful decisions need help and support, even if we disagree with them—perhaps most especially when we disagree with them.
Balderdash, you think to yourself. No one refuses to act on same-sex desires for religious reasons. But that’s simply not true. We know it could happen, because it already has. As Eve Tushnet writes in Gay and Catholic, “I was born in 1978, came out of the closet at age thirteen or so, and was received into the Catholic Church during my sophomore year of college.” She committed herself to a life of celibacy, in keeping with her church’s teaching. You may think it foolish. But it’s hard to deny that it is a well informed, free choice.
And it’s not just students. Rosaria Butterfield, in The Secret Thoughts of an Unlikely Convert, details her circuitous route to Christianity, a path that starts with her as a lesbian professor at Syracuse and ends with her married (to a man). She’s a homeschooling mom. The transformation was a painful one. Butterfield writes, “How do I tell you about my conversion to Christianity without making it sound like an alien abduction or a train wreck? Truth be told, it felt like a little of both.”
Passing the controversial portion of SB 1146 at some future date would say the state of California believes all educational institutions should be organized so that those with same-sex attraction should be surrounded by a community that approves of specific views about gender and sexuality, even if a subset of those students (and professors!) desperately want communities that will help them resist these desires for reasons perhaps known only to them, religious or otherwise. Is it wrong or immoral to decide for religious reasons not to act on same-sex desire? Should students who resist such urges be sent to counseling? These questions aren’t distractions. They strike at the heart of the matter: To what extent is the state of California willing to permit young people to find others who will affirm their difficult decisions as they take fragile steps on their journey to adulthood?
The same concern that animates lawmakers’ desire to protect students exploring their sexuality should animate a desire to protect students who decide not to do such exploring, and who seek help from others along the way. Let’s grant that it’s hard to be gay at a Christian college in California, when that college says homosexuality is wrong. What can be worse? Imagine being attracted to people of the same sex, publicly speaking about it, and then saying you’re not going to act on that attraction due to your Christian beliefs. Someone who has decided to remain celibate for her religious beliefs cuts against the grain of our culture in a remarkable way. If we want to protect a minority position in the state of California, surely that’s it.