There probably weren’t any Supreme Court justices marching in the pride marches of recent weeks. But they did give gay people a nod last Monday. In Christian Legal Society v. Martinez, the Supreme Court upheld a University of California Hastings College of Law rule prohibiting registered student organizations from excluding anyone, in this case, lesbians and gays. The Christian Legals contended that their religion forbade them to associate with people who engaged in “unrepentant homosexual conduct,” and that the law school rule violated their religious freedom in demanding open membership.
The opinion, by Justice Ginsburg, is hardly a paean to gay rights – it carefully notes that the world of registered student organizations is a “limited access public forum,” not a full public forum like a town square. A limited public forum, which carries with it benefits, is treated somewhat more like the public funding cases. People may have rights, as the Christian Legal Society claimed, not to associate, which would protect them, for example, from a law forcing them to take gay members, but they do not have rights not to associate and to still claim money and recognition from the University of California. Certainly nothing in the opinion indicates that gays and lesbians are a specially protected class such that an organization funded by the state university excluding them particularly would violate the 14th Amendment. All this opinion does is turn back the claim that religious beliefs trump all other legal claims, including the university’s rules of inclusiveness.
The opinion is noteworthy not just for what it says about public colleges and their student organizations, but also for what it may suggest about Perry v. Schwarzenegger, the constitutional challenge to California’s Prop 8, rejecting gay marriage, as it ever so slowly wends its way to the Supreme arbiters. First, the 5-4 decisions in the Hastings case was that rarest of birds, a collection of the Court’s four liberals plus the gays’ best hope: Justice Anthony Kennedy. If the case against Prop 8 has any chance in the Supreme Court as likely configured, it rests in Justice Kennedy, who wrote the opinion in Lawrence v. Texas, the 2003 case striking down the sodomy laws as unconstitutional.
Second, Justice Kennedy’s separate opinion, concurring in the opinion of the Court, is a pretty stirring argument for the Prop 8 plaintiffs coming up from California. Justice Kennedy takes time to write separately, even though he explicitly says he only speaks to support the opinion of the Court, because he wants to say a word in defense of the special role of reason in a legal system:
“Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner.... As a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior ... were those sorts of requirements to become prevalent, it might undermine the principle that in a university community — and in a law school community specifically — speech is deemed persuasive based on its substance.... A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be ... inconsistent with the basic concept that a view’s validity should be tested through free and open discussion.”
By all reports, the strongest thing the plaintiffs in Perry have going for them, beside the obvious talents of their lawyers, David Boies and Ted Olson, is the power of rational argument. To be constitutional, legislation has to have some basis in reason. Since the defendants, cleverly or foolishly, chose to limit the presentation of evidence in Perry essentially to one dubious expert, they were forced, by closing argument, to contend, simply, that Prop 8 is constitutional, because the groundless fears of a majority of the referendum voters constitutes a rational basis for legislation. This position differs radically from the arguments that the Prop 8 proponents presented in the campaign for Prop 8, which included the damage to society by treating gay and lesbian people as normal and worthy. It even differs from the defendants’ original attempts, at trial, to present evidence that the option of same sex marriage actually harms heterosexual marriage. In essence, the Prop 8 defendants are arguing that they do not have to make a substantive, rational argument for their law.
By forcing them into a court of law, the plaintiffs challenged not so much the substance of Prop 8 as its metaphysics: What counts as reason? Inchoate fears may be the currency of political campaigns, sadly. But Justice Kennedy’s opinion reminds us that they are emphatically not the stuff of the American legal system, starting with the three years in which its practitioners learn their skills. If he means what he said, this rare bird may also be the first swallow.
Linda Hirshman is at work on a book on the gay revolution, "Victory! How a Despised and Marginalized Minority Came Out, Pushed Back, Faced Death, Found Love and Changed America for Everyone," to be published in 2011.
Joshua Wolff raises an array of issues regarding the place of gay, lesbian, bisexual and transgender persons in Christian higher education in his provocative article, "Where 'Don't Ask, Don't Tell' Remains." He raises the stakes for this discussion by calling for the weight of professional opinion to be combined with the fiduciary oversight of accreditation agencies to challenge the way religious institutions of higher education handle matters of sexuality.
Wolff gets a number of things right. The special needs of sexual minority individuals present a particular challenge for religiously conservative institutions. Such individuals have the right to expect that their needs will be handled with care, dignity, professionalism, sensitivity, and compassion. Without question, there have been glaring failures in handling such needs at these institutions, and there is considerable unevenness in the competence with which such issues are handled.
Wolff presents a narrative of fear in his article, "constant fear that I would be dismissed for having the courage to live my life with integrity and honesty as a gay man." He describes his fear that any disclosure or discussion of his emerging understanding of his sexuality would result in dismissal, given his college’s Student Code of Conduct.
Wheaton College in Illinois, where I serve as provost, has a moral code called the Community Covenant, one similar to that of Wolff’s alma mater. Our Covenant (and his college’s code) are based on and shaped by a traditional understanding of the comprehensive moral teachings of the Bible, including but not exclusively focused on the Bible's teaching on sexual morality. I know from personal conversations and relationships the fear of disclosure that some students experience, but also have had numerous conversations with sexual minority students without the feared ramifications that Wolff cites constraining the interaction. While there may be many narratives of fear and of being "driven into the closet" that emerge from religiously conservative settings, there also are many contrasting narratives that are not being heard in non-religious academe.
Wesley Hill has recently published his account of a process of self-discovery and exploration similar to that of Wolff while Hill was a student at Wheaton College in his bookWashed and Waiting: Reflections on Christian Faithfulness and Homosexuality. His narrative serves as an interesting contrast to Wolff’s. Hill understood the pastoral intent of our institution, and understood rightly that, with regard to homosexual conduct, there were two primary dimensions of our shared Community Covenant that were relevant to his situation: a) a conviction that the Christian Scriptures teach that homosexual conduct is not a moral option for the confessing Christian seeking to follow Christ wholeheartedly, and b) therefore that it needed to be his individual commitment to not engage in homosexual conduct as a member of our community during his time as a student.
Neither of these convictions prevented honest discussion, community support, and exploration of his sexuality while at our institution. Hill selectively and judiciously disclosed his emerging sense of his sexuality to numerous faculty, administrators, and support staff. His experiences were not universally positive; he was witness to and hurt by instances of insensitive and callous reactions. Such experiences are ubiquitous for sexual minority individuals. Nevertheless, his predominant experience was one of support and care.
Hill found our community to be one in which he could honestly engage these issues, discuss their complexities, test the veracity of the traditional understanding of Scripture, and receive support as a fellow disciple of Christ. He is now finishing a Ph.D. in New Testament studies, and lives as a celibate gay Christian. He has emerged, as do many, from this time of engagement and examination supportive of the moral framework of the Scriptures and of our institution’s summary of them. We have, of course, other students who embark on similar trajectories of exploration, concluding later that they do not fully support our institution’s stance.
There is no lack of clarity to what Wolff believes are the lessons from his experience. He urges that institutional policies like ours be challenged and changed. He does so, quoting Wolff, on the putative basis that such policies a) force students to "lie about who they are," b) "discriminate" by sending "the message to prospective and current students that 'if you are gay, you do not belong here,' " c) "use religion to hide from accountability for policies and programs that can cause psychological harm," and d) use "religious freedoms" as a pretext to oppress or discriminate against GLBTQ persons.
These arguments can only be addressed after clarifying a number of foundational issues. First, many caricature institutions like ours as "forcing" individuals to sign creedal statements. This is far from the intent or reality of our institutions. Formed out of and sustained by the conviction that deep religious conviction is compatible with and felicitous toward academic and intellectual excellence, institutions like ours seek to be voluntary communities of like-minded individuals who, within the framework of our defining characteristics, have the academic freedom to teach and to pursue knowledge as communities of persons of shared religious conviction, as my former president, Duane Litfin, recently argued. The defining characteristics of such religious communities, particularly in the Christian tradition, are both theological and moral. The entire matrix of our faith demands a connection between creedal belief and the lived realities of our lives. Thus, to the bafflement of the non-religious community, we embrace as standards for our communities both theological and moral commitments congruent with our faith.
Many insist that the acceptance of GLBTQ persons entails the repudiation of moral censure of homosexual conduct and of many other sexual restrictions as well. This is of course an area of controversy and challenge today for all religious communities. Out of the ferment of these discussions over the last four decades, an interesting academic consensus has emerged. Contrary to popular understanding, the best scholars today — even many who don’t accept Scripture as authoritative for morality today — almost universally agree that the clear teaching of the Christian Scriptures is that intimate homosexual conduct is morally unacceptable. No less of a central figure in 20th century Christian systematic theology than Wolfhart Pannenberg stated that "The biblical assessments of homosexual practice are unambiguous in their rejection."
This has by no means settled the issue. Scholars and church leaders such as Luke Timothy Johnson have explicitly acknowledged that moral disapproval of homosexual conduct is the teaching of Scripture, and that therefore Scripture is wrong and must be bypassed for the sake of some higher good. Traditional Roman Catholics, Orthodox, and Protestants, however, feel no such latitude to conclude that Scripture is wrong, but accept the teaching of Scripture as the highest standard and hence morally binding.
Based on this understanding of the morality of homosexual conduct, many religious traditionalists question the formulation of sexual identity implicit in Wolff's argument. On the one hand, we dissent from the presumption that one’s sexual attractions and identifications must be lived out in behavior to have meaning. Thus, an individual can both have a stable sense of same-sex attraction and a commitment to chastity based on choosing compliance to the moral teachings of Scripture. We have just, on this basis, welcomed back to campus our alumnus Wesley Hill to address our entire student body, who describes himself as "a nonpracticing but still-desiring homosexual Christian." Such individuals are not required to lie about themselves.
On the other hand, traditionalists also dissent from the inclination so common today to accept the anchoring of one's entire identity around sexual orientation. The very depiction in Wolff's article of GLBTQ individuals as a discrete class, as if their sexual inclinations and orientations were the linchpin of their very being, is made problematic in the context of religious commitments that demand higher allegiance.
Contemporary scientific research lends further credence to that hesitancy on this point. Despite the common presumption that sexual orientation is directly analogous to skin color or race, an analogy invoked frequently in the cause of advancing GLBTQ advocacy, and despite the presumption that sexual orientation is genetically caused, the reality is that we still know little about the origins and causes of sexual orientation.
The latest and most rigorous behavioral genetics identical twin study by Långström, Rahman, Carlström, and Lichtenstein confounds much of our presumed wisdom about the etiology of sexual orientation, with only 7 out of 71 male identical twin pairs from the enormous Swedish Twin Registry matching for homosexual orientation. This finding led the researchers to conclude that genetic influence on etiology is modest at best, and likely secondary to familial and environmental influences. This conclusion is at variance with some contemporary summaries of what we know about etiology, but as I have argued in the current issue of the American Psychological Association Division 1 newsletter, the problem here is that these summaries poorly reflect the state of scientific knowledge. We know little for certain, from a scientific perspective, about how sexual orientation establishes the "core" of a person.
As a final foundational issue, Wolff raises the legitimate question of harm to GLBTQ individuals engendered by stigma and negative responses. He offers his own anecdotes of pain and fear, but though such concerns must be taken with great seriousness, his analysis here, as well as his more extensive analysis in his companion co-authored study, suffers from a gap in the evidence. His study presents the widely acknowledged evidence of psychological distress and difficulty in GLBTQ populations, and then alleges but fails to establish a causal connection between these problems and the Christian higher education environment. The recent task force report of the American Psychological Association similarly attributed psychological distress and difficulty to contextual stigmatization without being able to demonstrate a causal connection, as I have recently argued.
With this background, we can return to examine Wolff's "recommendations for religious programs." Such religious programs do indeed differ from the status quo in higher education on these and other dimensions. When religious institutions have carefully and thoughtfully formulated their policies, and when they have enlisted the thoughtful participation of the entire religious community in a caring implementation of those policies, the result will not be that of forcing students to lie about who they are. Rather, the communities can be places where honest and caring engagement with the deepest questions of personal identity can be examined in light of the realities of our common brokenness and common humanity.
The thoughtful examination of religious tradition and authority in the context of an honest engagement with contemporary cultural issues may allow for the fullest examination possible of these complex issues. The unpacking of our deepest human obligations, however they are construed, can be fostered in the context of a caring community. Our religious institutions of higher learning can become places exemplary in their commitment to transparency about their religious commitments and their implications for sexual minority individuals.
The existence of moral boundaries, properly understood, challenges all of humanity and not just sexual minority individuals. Thus, far from projecting "if you are gay, you do not belong here," we can strive to properly understand and communicate about our communities as fellowships or communities of sojourners striving with the limitations and brokenness of our common humanity.
Religiously distinctive educational communities, once common in the Western world, are now a tiny minority, and the legitimacy of our very existence is questionable in the minds of some. Far from using religious freedoms as a pretext to oppress or discriminate against GLBTQ persons, after careful review and years of debate, many traditionalists have reaffirmed that moral concern about homosexual conduct and about all sexual intimacy outside of marriage is well grounded in the theological and moral core of Christian faith. Similar conclusions have been drawn in traditionalist Jewish, Islamic, and Buddhist contexts as well.
The majority in academe may not share such views or find them reasonable; some find the very postulation of moral boundaries on sexual acts between consenting adults to be offensive. But to push aside institutions anchored in discrete religious traditions based on provocative anecdotes like Wolff's, or on any compilation of anecdotes, is a challenge to the religious liberty of these communities, a challenge to their fundamental right and capacity to self definition.
The protection of the religious freedoms of religious scholars, and of institutions that are voluntary communities composed of such scholars, is vital to the integrity of higher education itself if it fashions itself as truly valuing academic freedom, as a true marketplace of ideas. And it would be ironic in the extreme if, in the name of the inalienable right to self definition of individuals (GLBTQ persons) and of communities (of sexual minorities), the same inalienable rights of persons of religious faith to self definition were curtailed. As the respected Yale University philosopher Nicholas Wolterstorff has argued, "It would be a violation of the very idea of a liberal democratic society if a movement arose to prevent or restrict the formation of religiously-based colleges and universities. To prevent or restrict their formation would violate freedom of religion, freedom of speech, and freedom of assembly."
Wolff speaks as if all of academe is of one mind on these issues. It is not. Better that we foster reasoned discussion on the complexities of these unresolved matters than that we silence dissenting voices with accusations of prejudice, abuse, or oppression.
Stanton L. Jones
Stanton L. Jones, is provost and professor of psychology at Wheaton College in Illinois.