San Francisco State bars use of university funds to travel to Indiana. Connecticut governor bars all public colleges (and other state agencies) from using state funds to do so. Do these moves raise academic freedom issues?
Sixty years ago this month, the U.S. Post Office declared a small journal called ONE: The Homosexual Magazine, published in Los Angeles, to be obscene and thus unlawful to distribute through the mail. All copies of the latest issue were seized and presumably destroyed.
The editors -- having already endured a letter-writing campaign from the Federal Bureau of Investigation that tried to get them fired from their day jobs -- cannot have been that surprised by the postal service’s move. Still, the characterization of ONE as “cheap pornography” (in one judge’s words) was ludicrous. Recent issues had included articles on police entrapment, Walt Whitman, and attitudes toward homosexuality in Britain throughout history. The editors also published a sonnet by William Shakespeare and a salute to the “history-making TV appearance [of] Curtis White of Los Angeles [who] personally stated that he is a homosexual.”
By no stretch of the imagination was it fair to call ONE obscene. At worst, it was feisty. But that was much the same thing at a time when “homosexuals were virtually without constitutional rights,” as Walter Frank put it in Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy (Rutgers University Press). The turning point came when the Supreme Court overruled the USPS ban on ONE in 1958. The decision was little-noticed at the time -- and it doesn’t even register as a blip in the general public’s historical memory, in which the gay rights struggle began, more or less, with Stonewall.
The Supreme Court decision ran to one sentence and cited the Court’s ruling in Roth v. United States, two years earlier. The author of Law and the Gay Rights Struggle is co-chair of the Law and Literature Committee of the New York County Lawyers Association, and takes for granted closer familiarity with Roth v. U.S. than most non-jurists will possess. (I could have told you that the plaintiff was Samuel, a publisher of girlie magazines, and not Phillip, the novelist -- though not much more.) But upon looking up the decision, it’s fairly easy to spot what has to have been the crucial passage with respect to ONE:
“Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”
That it is. And a major strategy of early gay-rights advocates was to insist on the “absorbing interest to mankind through the ages” part with respect to same-sex desire. (Hence the Shakespeare sonnet in ONE.)
Frank’s purview is narrower, and a lot more democratic. He focuses on the seven decades following the end of World War II – a period in which the struggle for equality moved ever more in the direction of grassroots activism and demands for respect in everyday life. Identifying the illustrious gay dead gave way to more mundane but urgent priorities, like securing hospital visitation rights and protection from housing discrimination.
About half of Law and the Gay Rights Story consists of a succinct overview of how gay and lesbian communities and institutions took root within, and against, “a society that had simply decided to place certain people beyond its protection.” In a provocative formulation (I mean that in a good way) Frank writes that “discrimination itself could remain in the closet because gays themselves were not willing to come forward in sufficient numbers or with sufficient energy to contest it.”
A couple of generations of historians have studied how that situation changed – how the numbers and energy accumulated, and began to make a breach in a system that had effectively limited gays and lesbians to two choices, celibacy or criminality. Frank draws on and synthesizes the social and cultural historians’ work without claiming to go beyond it.
He does build in a distinctive periodization, however, by dividing the past few decades of gay-rights struggle into three phases or waves. The first and longest subsumes everything from ONE to Stonewall to the assassination of Harvey Milk: a cycle of growing confidence and assertiveness, coming to an end around the point when reports of a “gay cancer” emerged in 1981. His second period is defined by the AIDS crisis, in which government neglect and anti-gay political sentiment made the gay struggle largely defensive. A third wave, beginning in the early 1990s and continuing through the present, has seen something of a revival of the first period’s vigor but an even more remarkable growth of acceptance of claims for legal equality -- with the Supreme Court defining as unconstitutional both anti-sodomy laws and the Defense of Marriage Act’s definition of marriage to exclude same-sex couples.
In recent years, Frank writes, “concepts of freedom and equality began to overlap in a way they did not in the first phase, when gays were fighting for the right to celebrate themselves without fear and to be allowed some measure of dignity…. The equality that gays have been fighting for in this [most recent] phase concerns all the freedoms that most people take for granted, including the freedom to marry. As that argument has taken hold, the tide of public opinion has shifted, and with it the terrain on which the battle has been fought.”
In other remarks, the author seems perfectly aware of the potential for backlash. Consider the point of view expressed by a voter regarding an anti-gay ballot initiative: "I don't think being gay is right. It's immoral. It's against all religious beliefs. I don't agree with gays at all, but I don't think they should be discriminated against."
Frank cites this arresting blend of sentiments in a context suggesting that it demonstrates a slow growth of tolerance in seemingly inhospitable circumstances. That's one way to look at it. But politics is always a struggle to shift the terrain on which the battle is being fought, and reversals do occur. That said, I'd like to imagine that the person who contributed to ONE under the name Herbert Grant is still alive and well. In 1954, he wrote an article that might well have been the last straw for the authorities. In it, he proposed that same-sex couples be allowed to marry.
Submitted by Anonymous on August 19, 2014 - 3:00am
If you are gay, like me, or an ally, and work, like me, at a member institution of the Council of Christian Colleges and Universities (CCCU), you may have wondered this summer if the bad news about Christian colleges was ever going to end. In June, Eastern Mennonite University’s board announced that it was going to delay a decision whether to change the university’s current hiring practice, which does not permit employees to be in “covenanted same-sex relationships”; however, the board also stated that the current policy is suspended, creating a certain Kafkaesque situation. If a gay person in a “covenanted same-sex relationship” is hired during the suspension, or comes out, and the board decides to not change its current policy, what then?
CCCU member institutions (George Fox University, Simpson University, and Spring Arbor University) asked for and received religious exemptions from the Department of Education’s regulation that transgender students cannot be treated differently under Title IX of the Education Amendments of 1972. A California state judge upheld California Baptist University’s decision to expel a transgender student.
But two letters submitted to President Obama requesting that a religious exemption be included in his then-pending executive order that federal contractors could not discriminate against LGBT employees provoked the most controversy. The first letter, dated June 25, 2014, and organized by the Institutional Religious Freedom Alliance, had 158 signatures, among them 25 presidents of CCCU member institutions. The second letter was submitted on July 1, 2014, signed by 14, among them Michael Lindsay, president of Gordon College, a CCCU college.
On July 21, President Obama signed the executive order that added sexual orientation and gender identity to those categories protected by Executive Orders 11478 and 11246. The order does not include the requested religious exemption — only time will tell what litigation this omission will spark. I suspect the Alliance Defending Freedom is ready and waiting for the first CCCU college to knock on its door for legal help to keep LGBT persons at bay.
Others have written about the legal issues raised by this executive order for CCCU colleges. And the stream of books about biblical and theological perspectives is unending. I, for one, have probably read my last book providing a theological and biblical defense of same-sex relationships. Yes, there are some, e.g., Bible, Gender, Sexuality: Reframing the Church’s Debate on Same-Sex Relationships, by James V. Brownson. As one supportive friend expressed it, “This conversation ended for me several years ago.”
Usually I can ignore the clamor about LGBT persons at Christian colleges — I am out to a small circle of friends where I teach and have other close friends who support me. I walk into my classroom and remember how much I enjoy talking about ideas. And teaching permits me to read books and discuss them. But reading the two letters submitted to President Obama requesting a religious exemption reminded me how many think that my presence threatens the moral health of their institutions even though I am a co-religionist. If an out, gay professor at a Christian college were teaching the Krebs Cycle in Biology 101 or explaining the origins of World War I in History 370, does the content then suddenly become inaccurate? Or will s/he "have a gay agenda"?
Do some CCCU institutions think having out, gay, married faculty/staff would be interpreted as an official endorsement of same-sex marriage? I have colleagues who are divorced — does their presence mean the institution "endorses" divorce? No, it does not. I have married colleagues who have chosen not to have children. Does this mean the university "endorses" that choice? No, it does not. The university simply recognizes the freedom to decide for ourselves what is best and makes for fulfilled lives.
Some signers of these letters have not acquitted themselves well once negative reaction set in. President Lindsay of Gordon has now said he “never would have signed the letter if he had known it would become public.” So much for the courage of his convictions.
Friends at another CCCU institution told me that there was general confusion when the president, having signed the letter, insisted that his institution did not, in fact, discriminate against LGBT persons. This despite language in the faculty and student handbooks which has prevented out, gay, partnered faculty from being hired for decades.
One of the more disappointing statements was made by William Robinson, interim president of the Council of Christian Colleges and Universities, who stated, “The issue is not homosexuality. It’s religious freedom.” How can the issue not be homosexuality when faculty handbooks and institutional statements at CCCU institutions contain language that bars hiring gay people?
From Biola University’s Standard of Conduct for faculty: “members of the Biola community are not to engage in activities that Scripture forbids. Such activities include, but are not limited to, dishonesty, thievery, fornication, adultery, homosexual practice...."
From Bethel University’s “Covenant for Life Together”: “The Bible also identifies character qualities and actions that should not be present in the lives of believers. For example: destructive anger, malice, rage, sexual immorality, impurity, adultery, evil desires, greed, idolatry, slander, profanity, lying, homosexual behavior, drunkenness, thievery, and dishonesty.”
“The issue is not homosexuality. It’s religious freedom.” Please.
But for the issue of homosexuality, letters requesting a religious exemption from the president’s executive order would never have been written. Robinson’s statement is sadly reminiscent of language used by Bob Jones III, president of Bob Jones University, in a 2000 interview with Larry King on CNN. Jones responded this way to a question about the university’s ban on interracial dating: “Well, being a Bible believing institution, Larry, we try to base things on Bible principle [sic]. The problem we have today is that our principle is so greatly misunderstood. People think we don't let them date because we are racist, in other words to be racist you have to treat people differently. We don't. We don't let them date, because we were trying, as an example, to enforce something, a principle that is much greater than this. We stand against the one-world government.... The Bible is very clear about this.... There is a religious freedom issue, that's all we ever fought for.”
CCCU presidents who signed a letter to Obama to ensure religious freedom should encourage their respective institutions to make truth-in-advertising a hallmark of information for prospective students. I would suggest the following statement:
If you are a student who is wrestling with your sexual and/or gender identity, then [name of institution] is probably not the place for you. It is not that we don’t recognize the reality of your struggle (in fact, we have a student organization where you can find support — depending on the institutional policy), but our religious liberty comes first. If you are gay and do enroll, you should know that the moment you graduate your status changes. Should you find someone to love and share life with and marry, we will not hire you.
A member of the Gordon College community wrote an eloquent essay on the controversy titled, “How long O Lord?” posted at an anonymous blog for members of the Gordon community “who want to share their thoughts yet don’t feel they can.” The author identifies himself/herself as “Anonymous Staff/Professor” and writes:
“How long O Lord? Scripture often uses this phrase as a sign of lament.... For my community at Gordon I ask, How long O Lord?.... How long until we have real conversation about the image of God and the possibility that maybe we’ve been interpreting scripture wrong on this issue for centuries? .... How long O Lord till we repent for dividing your community? I pray that it will not be too late when we do. This I lament.”
Amen and amen.
The author is a faculty member at a Christian college where publishing this piece with the author's name would result in dismissal.
On June 25th a group of faith-based organizations wrote a letter to President Obama asking him to include “explicit religious freedom protections in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors.” One week later on July 1st another group wrote an almost identical letter. The first letter was largely ignored by media; the second letter has been criticized by many as calling for the president to tolerate bigotry. The presidents of Christian colleges were signatories and a number have drawn much criticism as a result.
Why were the June and July letters received so differently? After all, faith-based groups have had hiring exemptions embedded in legislation since the civil rights laws of the 1960s.
The key is Burwell v. Hobby Lobby, which was handed down five days after the first letter and one day before the second. The Supreme Court ruled that Hobby Lobby, a huge business, could have a faith-based exemption from part of the Affordable Care Act. This was the first time the Supreme Court had recognized a faith-based exemption for a business. While the case made a fairly narrow ruling based on a piece of legislation that can be amended, the implications of the case caused an uproar. The picture of a rich family-owned business getting exemptions at the expense of poorer female employees who struggled to afford IUDs irritated many. So, when the July letter to Obama was made public in the aftermath of Hobby Lobby, the image of religious institutions that want exemptions from anti-discrimination policy turned many Americans sour. Is allowing Christian institutions autonomy in hiring religious freedom or is it institutionalized discrimination? The answer is more difficult than many recognize.
I know most of the people who signed the June and July letters; I grew up in their communities and they are my colleagues, mentors and friends. They are faithful citizens who do not hate the LGBT community. They take seriously Jesus’ summary of the law and prophets when he said, “Love the Lord your God with all of your heart, soul and mind; love your neighbor as yourself.” Their institutions have done much good in the world, and these leaders are sincere in their belief that they must live and work in accordance with their deeply held religious beliefs.
In addition, most are from Christian traditions that have historically held that homosexuality is a sin. Times are changing, though, and people in these traditions today are struggling to think through two things. First, what does it mean to love someone who lives in ways they believe are wrong? Second, what do we really know about what God intends for gay people? Churches and theologians are demonstrating that there are different ways to think about these things and changes are starting to occur in these institutions. The Christian culture is in transition and these leaders are trying to do good work in the world in the midst of great change. I admire them for this.
I also think it is important to understand exactly what they are asking for. For 200 years our First Amendment jurisprudence has held some form of this principle: Religious belief is to be protected, and sometimes religious belief is not private but is made manifest through policies of institutions like churches, schools and nonprofits.
There are limits to this protection, of course, because some religious beliefs harm others. When courts have tried to balance religious freedom against possible harm caused to others they have used the compelling interest test. They find for religious freedom unless limiting this freedom is the least restrictive alternative to protect others.
So, since the civil rights legislation of the 1960s, we have seen legislators pick up on this protection, particularly in the area of employment. For almost 50 years, faith-based institutions have had a statutory and Constitutional right to make employment decisions according to their religious belief. There has always been some lack of clarity about whether the law protects only the right to hire co-religionists or whether it allows complete freedom from nondiscrimination laws related to race, gender and disability. There has also been ongoing debate about whether faith-based institutions should receive government funding.
It helps to understand the framework that underlies the exemption request. Most of the authors of the letters to President Obama are driven by an appreciation for what is often referred to as structural or principled pluralism. They argue that as far back as the framing of the Constitution, Americans have valued the right to live according to deeply held beliefs. But, they say, it is a mistake to bifurcate belief and behavior. Belief always directs behavior so protections of belief have to be extended to institutions as well as to individuals.
This kind of pluralism has its roots in European democracy, mostly clearly seen in a policy about schools advocated by theologian and statesman Abraham Kuyper in the Netherlands. Kuyper found himself in a conflict between Roman Catholic, Protestant and secular groups with respect to the funding of schools. In an effort to protect pluralism of institutions and pluralism of worldviews, he devised a solution that gave public funds to all schools, saying that all schools contributed to the common good and educated students. Thus, all worldviews that supported the schools should have access to public funding. To limit funding to only one kind of school would elevate one worldview over another. That is not government’s role. Government, to the extent possible, should treat worldviews similarly.
It’s this kind of pluralism that drives the authors of the letters to argue that their institutions should receive the same public funding that other schools and nonprofits receive. They are doing the same work: they educate students; they feed the poor; they heal the sick. Government should not treat them differently because of their worldview. Their request for exemption from employment law isn’t really related to LGBT people. It is a broad request that asks for room to define themselves by their deeply held beliefs, and also to be treated the same as other similarly situated groups contributing to society in the same way.
This, of course, is the irony. The LGBT community, and in particular the Christian LGBT community, is asking for the very same thing: treat us the same as others with similar qualifications.
I have spent my life studying First Amendment jurisprudence and the kind of pluralism that these faith-based groups are asking for. I, too, am a pluralist. I believe that government should try to protect a diversity of worldviews and should also fund a pluralism of institutions that are shaped by different worldviews. I think this leads to a healthy society where minority voices have room to grow and to try and influence their communities. If we do not have pluralism we have only majoritarian processes. Majorities often tread on the toes of smaller groups. Allowing for pluralism does not mean that we give up on a fight against discrimination; rather it means that government is not the tool by which a good life is defined. Government protects the rights of institutions to exist according to their beliefs (subject to the compelling interest test), but within the institutions the fight for justice and nondiscrimination can flourish.
But, as a pluralist I am troubled by those letters. President Obama has signed the executive order without the exemption and already a number of lawsuits are planned to challenge his action. I understand that the lawsuits are designed to protect religious freedom, but I hope most who signed the letter will not join the litigation. I think those of us who advocate for religious pluralism have more thinking to do, and along this line, I offer those faith-based institutions a two-part challenge. My challenge comes from a place of understanding because they are my people. But it is a serious challenge because I think that my people have neglected an important responsibility.
First, are these people of faith arguing for pluralism for others? Political pluralism is supposed to protect a variety of worldviews that shape institutions. This means that even in family policy, pluralism rather than majority perspective must prevail. It is no surprise that the Netherlands, home to Kuyper, was the first country to recognize same-sex marriage. But the groups that have been advocating for pluralism to protect their own views did not lead the discussion for legal recognition of different sorts of marriage and family structures. In fact, some led the opposition. People who favor pluralism should have been the first in line to support public, legal recognition of different sorts of families.
Second, what obligations do faith-based institutions have? Many of the same groups that ask for this employment exemption heralded Hobby Lobby as a clear victory for justice. There was no caution; they expressed no worry about poor women’s access to contraception and no concern for the religious freedom of employees. Instead, they expressed triumph in the Supreme Court’s movement toward the autonomy of faith-based institutions.
The problem is that the pluralism they advocate for is not based in autonomy. Structural and worldview pluralism has its political roots in the sphere sovereignty of the Reformed tradition and the subsidiarity of the Roman Catholic tradition. The emphasis is on responsibility of institutions and on connectedness in communities. Autonomy has little place in the discussion. Faith-based institutions must focus on the responsibility they have in the public sphere and they have an obligation to explain what sorts of government regulation would be legitimate. Would they argue that faith-based businesses should be allowed to discriminate against customers? If so, on what basis? Sexual identity? Race? Gender?
I think the key here is to consider what it means to have an institution that reflects religious belief. Consider two different organizations: the first says we will employ anyone other than gay people because of our belief; the second says we will employ only the kind of Christian that believes along with us that homosexuality is a sin. Are these two organizations the same? I’d say the first is not articulating a worldview but the second is. The Supreme Court says it will not get into deciding what is and is not legitimate religious belief but I think that faith-based institutions that want exemptions from law should at a minimum be required to spell out who they say they are. And they should be required to be consistent. I do not care for behavior covenants at schools, colleges or nonprofits, but I think a democracy can make room for them. However, if an employee is fired for violating a behavioral covenant that excludes homosexuality, employees that violate other parts of the covenant should likewise be fired. Transparency and consistency of treatment are very important.
I am committed to fighting for just treatment of the LGBT community. For Christians like me who believe the historical context of a few verses in the Bible has been misunderstood, sexual identity justice at this point in history seems as critical as suffrage for women centuries ago or civil rights for African Americans during emancipation.
But in the final analysis I wish President Obama had put an employment exemption into his executive order, bringing it in line with other civil rights laws. Now, a renewed “government war on religious institutions” will be declared by leaders, and we do not need this going into the next two election cycles. I am worried that the litigation is going to further damage LGBT people in these faith-based institutions and I think that change would have been better and more permanent had it come from within. I know that some of the organizations represented by these letters have members who are actively pursuing policy changes that would result in nondiscrimination of the LGBT community. For many of us, treating gay brothers and sisters in Christ as full members of our institutions is required by our goal of following Jesus.
Julia K. Stronks has practiced law and is the Edward B. Lindaman Chair at Whitworth University, in Spokane, Washington. She is the author of Christian Teachers in Public Schools and Law, Religion and Public Policy. She also wrote OneJesus: A Response to the World Vision LGBT Policy.
As more states recognize gay marriage, universities consider whether to keep policies created to help same-sex partners who couldn't marry. And in states that still don't recognize gay marriage, some public colleges are starting to offer new benefits.