After reading Obergefell I think the concerns of these colleges are unjustified for a number of reasons. But I also think that this case has given us an opportunity to open a dialogue about a plurality of viewpoints in our culture. The onus for such a conversation is on my own community, the evangelicals who have been criticizing Obergefell. At the same time, conservative Christians who are worried about Obergefell get even more stubborn when the public labels them bigots for refusing to support something they truly believe to be harmful. It’s time for all of us to listen to each other and talk to each other more carefully.
The Cause of the Worry
Some Christian universities are worried that they will lose their tax-exempt status and have to close if they are not willing to change their beliefs about homosexuality. This concern was first voiced during the Obergefell oral arguments when Justice Alito said this: “In the  Bob Jones [University] case, the court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?”
Solicitor General Donald Verrilli Jr., arguing for same-sex marriage, responded that without more specifics he couldn’t be certain but that it would definitely “be an issue.”
This exchange caused the chancellor of Patrick Henry College in Virginia to write in USA Today that churches and faith-based educational institutions would have to decide what was more important, their religious convictions or their tax exemption. He said religious schools and colleges should get prepared for the fallout of a decision in favor of same-sex marriage because the “bullying” would be immediate.
The concern that Justice Alito expressed emerges from a 1983 Supreme Court case, Bob Jones v. U.S., involving a conservative Christian university that discriminated on the basis of race.For decades Bob Jones University denied admittance to black students, but by the early 1970s it changed that policy. It decided to admit black students but it kept its policy that said students would be expelled if they engaged in interracial dating. This student behavior rule was based on an interpretation of the Bible that suggested God intended the races to be separate.
The Internal Revenue Service in 1971 barred tax exemptions to colleges that discriminated on the basis of race, and determined that Bob Jones University did so.
When the university brought a lawsuit against the IRS, the Supreme Court affirmed that proper interpretation of the IRS statute meant institutions seeking tax-exempt status must serve a “public purpose and not be contrary to established public policy.” Racial discrimination did not serve a public purpose; furthermore, it violated public policy. Today, some faith-based institutions worry that an interpretation of their scriptures forbidding homosexuality will be found to be a violation of public policy just like racism.
Is their worry valid? For reasons embedded in the cases themselves, the answer is no.
An Unwarranted Concern
There are two reasons that faith-based colleges will be allowed to continue to act on their beliefs against homosexuality without losing tax-exempt status.
First, the Supreme Court in Bob Jones based its decision on the fact that every branch of government and an unbroken line of Supreme Court cases had repeatedly and explicitly denounced racial segregation. That reasoning focused on a legislative and jurisprudential history that had developed over 100 years. The Equal Protection Clause of the 14th Amendment targeting racial discrimination was ratified in 1868. Brown v. Board of Education, the Supreme Court case that interpreted the Constitution to disallow segregation in education, was handed down in 1954. And while some legislation exempted religious institutions from the nondiscrimination law, religious institutions themselves changed their own thinking about segregation and discrimination. By the time the Bob Jones decision was handed down, Christian universities that argued for a biblical interpretation in favor of racial segregation were a tiny minority of the Christian voice in higher education.
None of this legislative or jurisprudential history exists for LGBT claims.
Moreover, in the 30 years since Bob Jones, we have not seen the IRS make a similar move against religious universities in any area. There is no reason to believe that the IRS would suddenly decide to deny tax-exempt status to religious universities that argue as part of their foundational beliefs that homosexuality violates God’s law.
Second, if the IRS were to make such a move now or in the future, it would not be successful. The Obergefell majority specifically said that it was not willing to limit religious freedom. Justice Kennedy, who wrote the majority opinion, focused on the concern of religious institutions. After stating that Obergefell relates only to a situation in which no harm occurs to others, Kennedy explicitly addressed religious organizations. He said that the First Amendment ensures that they are given “proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
What did Justice Kennedy mean? Why do his words hold such significance, particularly since the dissent in Obergefell said religious institutions ought to be worried? The answer lies in the tests used in constitutional jurisprudence that highlight the relationship between the Bob Jones and Obergefell decisions.
The Bob Jones court applied the strict scrutiny test, concluding that even though the First Amendment protects religious liberty, religious freedom is not absolute. In this case, where the government wanted to elevate the protection of racial groups over the protection of religious groups, the government had to show two things. It had to show that it had a compelling interest and it had to show that it had taken a very restrictive, narrow path to achieve its compelling interest. This is a high bar, and the Supreme Court uses it to review only certain discrimination claims -- like those based on race.
In Bob Jones the Supreme Court said this: “The government's fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.”
That language is important because the strict scrutiny test is the gold standard when courts look at legislation that limits the rights of people or groups. Every group that wants protection wants the strict scrutiny test to be used, LGBT groups included. But we have not had any ruling that LGBT claims should receive strict scrutiny despite decades of litigation asking for it. Even gender discrimination doesn’t receive a test that high after a century of debate.
Furthermore, in Obergefell the Supreme Court was careful to avoid any language that could be used to further develop LGBT claims when they bump up against religious freedom claims. The Obergefell Supreme Court used no tests and no levels of scrutiny. This was frustrating for those of us looking for guidance about how LGBT claims should be handled in the future but with respect to religion it showed a clear preference to elevate religious freedom protection. One has to look back only as far as last year’s Hobby Lobby case to see how eager this Supreme Court is to protect the religious freedom of churches, educational institutions and even for-profit businesses.
This isn’t, however, the end of the story. There is a lot more litigation to come. Most of the litigation will be about employment rights for LGBT people outside of religious institutions, and some of it will be about protecting the rights of LGBT consumers from businesses that want to refuse service to them. These are not cases that involve universities. The cases that do involve universities will likely start with outside accreditors for professional programs at Christian institutions. Without better political discussion, I think the litigation is going to get nastier before it solves tensions between groups. That will hurt us all.
I teach at an evangelical institution. I believe in both legal protection for LGBT claims and protection for religious freedom. I recognize that there can be a tension between these two and I know that many religious institutions are working hard to figure out how they should handle these matters with justice and care for all voices. It isn’t easy.
And it isn’t just faith-based universities that have to consider this balance. State colleges and universities want to accommodate the rights of LGBT students and employees, and they have to accommodate rights of conservative Christians -- it’s required by the First Amendment. We all have to figure this out together and it is going to take compromise by everyone.
I think litigation is a bad way to balance the rights of groups of people. In these cases we have two small groups, each believing it has been misunderstood and discriminated against at different times in American history. Litigation will hurt them; political compromise between them provides at least some room for them to control the conversation. These groups need to talk to each other, listen to each other and help the nation figure out a way to accommodate both their interests.
By the year 2000, Bob Jones University eliminated its racially discriminatory policies, and by 2008 it had issued a formal apology for the damage it had done to people of other races. Conservative religious groups need to recognize that religious freedom does not mean they exist in a vacuum and can do whatever they want to. They need to learn from others in society, and they have a responsibility to people who differ from themselves. At a minimum conservative groups should refrain from criticizing Christian institutions that have carefully considered this matter and have decided to end policies that discriminate against gay Christian employees. Furthermore, because I have been writing in this area for so long, I know of many closeted gay employees at many conservative Christian universities. These employees are beloved by their communities but they are afraid to be open about who they are. Christian institutions need to create a safe place for their own employees and invite them to teach the rest of us what life has been like for them.
And LGBT advocates cannot forget that their own desire to live according to who they are as humans is exactly the same as what conservative Christians want. Majority rule without concern for small voices has hurt the LGBT population for centuries. The LGBT folks I talk to realize this and are quite loath to condemn others who differ from them. They believe in compromise and often are willing to talk with conservative Christians when they have a safe space where both sides come together to try to get to know each other.
The only way to address these challenges is in careful discussion. We have to get to know each other, to listen to each other. Both groups would benefit from conversation about what it means to be a small voice in a pluralistic, democratic nation. And then my bet is that they would have something to teach the rest of us about compromise and tolerance.
What better place to have these conversations than an educational setting?
Julia K. Stronks is the Edward B. Lindaman Chair and a professor of political science at Whitworth University. She has written several books and articles on the relationship between faith and public policy including Law, Religion and Public Policy: A Commentary on First Amendment Jurisprudence (2002).
Trustees at Benedictine University refused to let the monks who founded the university participate in a recent presidential search. Monks are suing, saying they're being improperly shut out of university affairs.
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 Christian colleges seek exemptions from parts of some federal laws, two institutions face legal challenges to their treatment of transgender students -- and Education Department exempts one from part of Title IX.