The expanding controversy over President Simon Newman’s words and actions at Mount St. Mary’s University in Maryland provides an opportunity to reflect on how much has changed since a previous Newman, Cardinal John Henry Newman, authored his still widely read The Idea of a University (1853). Cardinal Newman was writing at a time when the German ideal of research was transforming universities on both sides of the Atlantic Ocean. Simon Newman became president of his university at a time when higher education institutions are being asked to redefine themselves to produce employable graduates.
John Henry Newman was a convert to Catholicism and was ordained in Rome in 1846. In November 1851, he was called to the newly established Catholic University of Ireland and held that post for seven years. With his discourses, published in 1853, he sought to lay out the mission of a Catholic university for both lay and Catholic audiences.
Cardinal Newman’s The Idea of a University opens with a simple statement: a university “is a place of teaching universal knowledge. That implies that its object is, on the one hand, intellectual, not moral; and on the other, that it is the diffusion and extension of knowledge rather than the advancement.” To Newman, if the university’s “object were scientific and philosophical discovery, I do not see why a university should have students; if religious training, I do not see how it can be the seat of literature and science.” Cardinal Newman was not rejecting the church’s role but focusing attention on the specific intellectual purpose of university studies. Indeed, he believed that the church “steadies” the university “in the performance of that office.” He also ultimately did not reject the principle of university research, but sought to temper it.
Cardinal Newman believed that a university must emphasize students’ intellectual development: “to discover and to teach are distinct functions.” A university must place the students’ “spiritual welfare” at the center of its activities. It must focus its energies on “the culture of the intellect.” It must teach each student to seek truth.
He also focused his attention on why a university must be a place for liberal education. Liberal education introduces students to “an intellectual tradition” that endows them with “the great outlines of knowledge, the principles on which it rests, the scale of its parts, its lights and its shades, its great points and its little, as he otherwise cannot apprehend them.” But to what end? Here, Newman insisted, “knowledge is capable of being its own end.” Liberal education, compared to professional education, “stands on its own pretensions” and “refuses to be informed (as it is called) by any end, or absorbed into any art, in order to duly present itself to our contemplation.”
Cardinal Newman was resisting various tendencies of his time. He was defending the premise that a Catholic university should emphasize the liberal arts and sciences. He was arguing that teaching was a practice sufficiently distinct from specialized research to require its own institutions. And he was articulating an idea of liberal education that was not focused on practicality or professional education. A university, and especially a Catholic university, stood for particular goods. If those goods did not guide the institution, then it should not be called a university.
A Quite Different Newman
Simon Newman comes from a very different background. After earning bachelor's and master's degrees in the sciences from the University of Cambridge, he went to Stanford University to receive his M.B.A. Having had 30 years in the business and finance worlds, and serving as director of JP Capital Partners and as CEO of Cornerstone Management Group, he aspired to do with the university what any entrepreneur seeks to do with her or his start-up: "raise a lot of capital and start a lot of programs and start the university on a more aggressive growth trajectory." But perhaps he did not realize that a university is not a firm -- that its purposes are complex and human and cannot be boiled down to data sets.
That at least seems to be the case in the recent controversy over dismissing struggling students -- which he infamously described as a need to“drown the bunnies.” On the one hand, as Newman noted in an essay in The Washington Post, it makes sense to identify struggling students early so as to protect them and their families from unjustifiable debt burdens. On the other hand, Newman reportedly also was seeking to raise his institution’s retention rate by removing students before the date when the university must report its numbers to the federal government.
The focus on outcomes reflects a broader transformation in how we think about successful institutions. Where once business schools portrayed firms as complex institutions responsible to multiple stakeholders, they now emphasize managers’ responsibility to overcome what is called the principal-agent problem in order to maximize shareholder value, as Rakesh Khurana, a Harvard Business School professor, argues in his book From Higher Aims to Hired Hands. Owners, as principals, have clear interests, but employees, as agents, do not always share them. To align agents to serve the will of owners, managers must impose clear performance measures and accountability.
That approach is more challenging in the nonprofit and public sectors, where maximizing profit is not necessarily the best way to evaluate institutional success. But the basic approach -- setting external standards and imposing incentives and penalties to hold institutions accountable -- was adopted in what is known as the New Public Management, and is one of the principles animating President Obama’s College Scorecard.
Simon Newman’s business background makes him comfortable in this new regulatory environment. He seeks to maximize value, but the issue is about defining value. What counts? Should a desire to report higher retention rates trump the institution’s responsibility to the students it enrolls? More important, if one accepts the notion of principal-agent theory, one also imagines the university as a firm with managers and employees, and sees the role of managers as aligning all employees to meeting the firm’s stated outcomes. That makes shared governance a real problem.
Cardinal Newman had argued that a university is at the end of the day a community of “teachers and learners” gathered together, as John Schwenkler writes in First Things. But, Schwenkler, an assistant professor of philosophy at Florida State University who previously taught at Mount St. Mary’s, continues, if “the faculty of a university are the university,” then “the institutional structure of the modern university, and its oversight by administrators, politicians and boards of trustees, are inessential to what it is.” This is because the “fundamental core” of what constitutes a university is, and has long been, “the guild of scholars dedicated to the activity of universal learning.” Universities, from this perspective, are not firms with owners and employees. But that was not how Simon Newman saw it when he demoted the provost and summarily fired two faculty members, one with tenure, who questioned his policies.
Simon Newman’s idea of a university is fundamentally different than Cardinal Newman’s. Rather than emphasize the university’s Catholic traditions and commitment to liberal arts education, the president has allegedly asked why so many crucifixes are on the campus. While that might just be a matter of taste, he has also purportedly complained that the "liberal arts doesn't sell." He has expressed his desire to reduce the number of core courses and increase the number of degrees with market value.
Mount St. Mary’s website offers no indication that the university is committed to the intellectual culture of its students. The lead page (as of yesterday) extols Mount St. Mary’s not as a place for the mind but as one “in the middle of everything.” A university is not a place apart, but a gateway to internships in D.C. and rock climbing and paddle boarding. Click on the button “Learn Here” and the first thing one sees is “BizHack, where students and professionals collaborate to create entrepreneurial business plans for products and services for the future.”
This is an institution that appears to be oriented not to students’ minds but to their pocketbooks. It’s not even clear that it has a liberal arts mission. Indeed, click on the button “Succeed Anywhere,” and the university does not talk about students becoming better people or citizens, but getting better jobs at leading firms.
In a letter that Mr. Newman recently emailed to parents in response to the growing controversy over his comments about drowning bunnies and his dismissal of faculty members, he sought to reassure the Mount St. Mary’s community that he is on the side of progress. The university is “in growth mode, and on the move. We are transforming our 200-year-old Catholic university to meet the needs of a demanding global economy. Your student is a part of this exciting transformation. We are building on our existing liberal arts core and Catholic intellectual tradition and preparing students for a more technical skills-based job market in a way that only the Mount can.”
Thus, in the tale of two Newmans, we can see many of the questions that remain at the heart of much broader conversations about higher education. What is the role of faith in college education? What is the relationship between teaching and research? What ought to constitute a university education? Should universities focus on the intellectual development of their students, or cater to students’ economic aspirations and the needs of employers? Does something set a university apart from other institutions?
Both Newmans grappled with how to define the essence of university education during historical moments when universities were -- and are -- under pressure to modernize to meet the needs of a changing society and to justify what they do. They both thus offer us a chance to reflect on where we have been, where we are and where we might want to go next.
A union was not available to me as an adjunct lecturer at St. John’s University, but I immediately joined when I was hired full time. Years later, I led faculty union negotiations on behalf of the administration at Niagara University. In both cases, the Catholic universities for which I worked voluntarily cooperated with unions as a way to give the faculty a structured, formal voice for its concerns. Today, the nation’s largest Catholic higher education institution, DePaul University -- where I am president -- enjoys productive relations with unions representing catering and facility services as well as numerous construction trades.
It is ironic, then, that as the national movement to organize part-time faculty now targets DePaul, I will oppose it for a reason having nothing to do with unions or part-time faculty.
Recent rulings of the National Labor Relations Board have put several of our Catholic institutions in the unenviable position of having to oppose organizing efforts of part-time faculty at our institutions. In December 2014, the NLRB asserted that it will take jurisdiction over faculty members at religious universities unless the institution holds them out “as performing a religious function in furtherance of its religious mission.” In the past few months, several NLRB regional offices have accepted this new legal standard and asserted jurisdiction over local Catholic institutions.
The NLRB is attempting to extend its authority over faith-based institutions, something Supreme Court and appellate court precedent has repeatedly rejected. That in itself is not surprising. Their specific approach, however, is deeply problematic, for it requires government functionaries to judge the manner in which we implement our faith in a university context, the very thing the Supreme Court and U.S. district courts found troubling.
Nor is it working in practice. Just within the past three weeks, one regional NLRB concluded that it could not exercise jurisdiction over Carroll College because of the college’s religious identity, while another regional NLRB concluded it could exercise jurisdiction over Loyola University of Chicago. It is exactly this kind of result, where a government agency decides that one Catholic institution is sufficiently religious, but another Catholic institution somehow is not, that the court hoped to avoid.
To understand, it’s valuable to start by recalling the history of Catholic institutions in America.
In the 19th century, when public anti-Catholicism was the unfortunate norm, it was common for nativists to condemn Catholics for failing to divide the world into rigidly separate spheres of religion and secular politics. Catholics, it was said, couldn’t be good American citizens unless they rejected any role for religious faith in their civic lives.
In that environment of persistent prejudice, Catholic educational institutions were singled out for combining faith and reason, religious mission and worldly goals. Catholic colleges and universities became the targets of virulent legal campaigns, including a movement for a national constitutional amendment to bar any form of government support for them.
In the modern era, the Supreme Court gradually took steps to remedy this unfortunate history of anti-Catholic bias. It did so by recognizing a right for religious institutions to reach their own determinations about the relationship between their religious and worldly affairs.
A linchpin of this epochal process was the court’s decision in a 1979 case, NLRB v. Catholic Bishop of Chicago. In that landmark case, a unanimous court squarely rejected the NLRB's attempt to expand its jurisdiction to include religious educational institutions.
Chief Justice Warren Burger held that the goal of the First Amendment was to protect the “religious mission” of the educational institution -- in particular, teaching. If the NLRB were to exercise jurisdiction over faculty-related labor matters, Burger explained, that would “necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission.”
And the court added a further protection: “It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” Chief Justice Burger and his colleagues were concerned that, once the NLRB took jurisdiction, its role in governing the institution and its norms could become far-reaching and in direct violation of the constitutional protection of religious freedom.
The importance of the Catholic Bishop case lay in its explicit recognition that “the church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school.” Repudiating past history of anti-Catholic discrimination, the court acknowledged that it was for the college or university and its clergy-administrators to define the nature of the institution’s religious mission and its core element of education.
The Integration of Faith and Reason
Crucially, for any Catholic institution, there can be no sharp division of the educational process or that institution’s mission into mutually exclusive realms of religious and secular. The church’s teaching, developed most powerfully by St. Thomas Aquinas and carried to the present, has always emphasized the integration of faith and reason. For a Catholic institution, as for individual Catholics, elements such as science, mathematics, service, charity, history and faith form an integrated whole that infuses all aspects of university life.
Yet, in practice, the NLRB proposes to decide which of our faculty are contributing to the religious mission of the institution, with a narrowness we reject, thereby ignoring Catholic universities’ explanation of the integrated function of faculty across the university.
In so doing, the NLRB -- perhaps unwittingly -- has reasserted the 19th-century bias that the Supreme Court repudiated in 1979. The court’s precedent recognizes that it is up to the institution to determine and govern its mission. The NLRB claims, to the contrary, that it will divide education into mutually exclusive secular and religious spheres and be the judge of whether a particular teacher’s function is “religious.”
Effectively, the NLRB is asserting that the teaching of science or history or international finance is inherently secular and cannot be part of an integrated, unified religious mission. The NLRB -- a branch of the government -- is substituting its binary understanding of the relationship between faith and reason for the judgment of the Catholic University and indeed of the church herself.
Yet as a matter of religion, a Catholic institution must insist on the unified integrity of its teaching faculty into a single overarching mission. The faculty cannot be divided into “religious” and “secular” faculty by government fiat without impugning the Catholic mission itself.
Religion is on the table in Catholic colleges and universities. From nursing to political science, from religious studies to art history, from psychology to ethics, professors may choose to inflect their teaching with religious content. Almost any topic can be taught in a pervasively religious way, if the instructor designs the course with religious objectives and values in mind.
Ideally, the overall ethical-religious mission of a Catholic institution infuses all classes, and indeed all contact between faculty members and students. Shaping that mission is a matter of faith that deserves protection as a matter of religious liberty under the Constitution. Regardless of whether or not a particular faculty member chooses to incorporate religion in his or her classroom overtly, the point is that it is up to the university, not the government, to decide what counts as religious perspective.
Church teaching has long recognized that unions can be an important part of a worker’s right to organize and control his labor. Far from being antipathetic to unions, many Catholic institutions, including my own university, work with unions and respect their role.
What’s at stake in the current situation is something completely different: the hard-won fundamental First Amendment right of Catholic universities to apply our own conception of our religious-educational mission. That mission depends on the rich, meaningful and ancient integration of faith and reason in education and ultimately in the self.
Several Catholic universities now find themselves in the positions of deciding whether to oppose the attempt of the NLRB to assert jurisdiction on this new legal basis. The freedom to determine what is or what is not religious activity inside our church is at stake.
Doubtlessly, some will argue that Catholic colleges and universities are merely hiding behind these arguments in order to resist the unionization of their faculties. Yet it is crucial for Catholic institutions to resist the NLRB’s assertion of authority in its attempt to get the power that the Supreme Court denied it in 1979. If the NLRB is able to subvert or reverse the court’s binding precedent, the consequences will be grave -- not only for Catholics but also for all Americans.
Today, thankfully, Americans of all faiths and of none deeply and broadly respect our country’s heritage of religious liberty. Catholic educational institutions, targeted and victimized in the American past, bear a special responsibility to stand up for constitutional freedom and equality.
Reverend Dennis H. Holtschneider is president of DePaul University and past chair of the Association of Catholic Colleges and Universities.
Submitted by Mark Putnam on September 24, 2015 - 3:00am
On Monday, two members of the Council for Christian Colleges and Universities (CCCU) -- Eastern Mennonite University and Goshen College -- announced they would leave the organization in order to avoid its potential rupture in the wake of their decision to permit the hiring of gay and lesbian faculty members who are married or celibate. Before that announcement, two other institutions had already quit the CCCU, saying they would not remain if some of its members hired faculty in same-sex marriages.
The situation facing CCCU is a modern-day version of an ancient problem. For millennia, the Christian church has confronted recurring choices between purity and unity. Historical distance has drained the intensity of stressful moments of disagreement, however, and over time we have become dispassionate readers of ancient conflicts. Concerns over eating meat that had been sacrificed to an idol seem odd through a 21st-century lens, as do expectations for circumcision, and for some, honoring the Jewish Sabbath.
But while the conflicts in the Christian church today are different, they follow a familiar pattern. They begin with a controversial issue manifested in human attitudes, beliefs or behaviors, but they are quickly recast as an essential theological question. Admittedly, it is sometimes difficult to discern where theology ends and social or political ideology begins. Political discourse seems to be driving much of our theological debate today, and our society now interprets the label “evangelical” as a political alliance much more than as a group of churches with a redemptive mission.
Regardless of their origins, theological and ideological disagreements abound in the church today as they always have. What may be changing is the extent to which the debates are spilling over into related or affiliated organizations that claim a faith-based purpose. Higher education is no exception, as institutional members of the CCCU are feeling the strain of theological and ideological difference pulling them apart.
The institution I serve, Central College, is not a member of the CCCU and to my knowledge never has been. The college has always been church affiliated and, for the past century, has had a relationship with the Reformed Church in America (RCA), but it is not directly governed or financed by the church. We have a Covenant of Mutual Responsibilities that encourages the college in its educational mission, ensures freedom of inquiry and calls on us to be of service to the wider church. As the college’s culture has evolved over the long arc of time, we have continued to embrace human difference and diversity as an expression of our mission and in service of our church affiliation. The college’s welcome statement notes:
We seek to create mutually respectful interactions and positive meaning in relationships with persons of every ethnicity, race, national origin, ancestry, color, socioeconomic class, creed, religion, philosophical belief, marital status, disability, physical appearance, sex, age, sexual orientation, gender expression and identity, and organizational affiliation.
Since Central College is not a member of the CCCU, one might ask why I care about this organization. It happens that I come from these roots, as I was raised in an evangelical church, attended a Christian school as a youngster and graduated from a Christian college, where I began my career, that is a member of the CCCU. I have traveled some distance from those roots, both theologically and ideologically, but I have a deep and abiding affection for the many gifts I received from the evangelical community throughout the course of my life. It pains me to see the fracturing that is now spreading to the CCCU.
Over many years, I have listened to shifting debates about the role of women in the church; the implications of divorce; the appropriateness of interracial marriage; the risks of incorporating contemporary music in worship; the consumption of alcohol; the use of playing cards; participation in social dancing, movies, gambling or secret societies; the appropriate hair length for boys and skirt length for girls; and what one is allowed to do on Sunday; along with a range of even more nuanced social and cultural issues related to human difference and diversity that are too numerous to count. What fascinates me is these once deeply divisive and emotional issues in the Christian church are fading into the backdrop of history, and years from now, they will seem as distant as meat sacrificed to idols, circumcision and the Jewish Sabbath.
In America today, we feel the current intensity around topics like human sexuality, abortion, contraception, the death penalty, evolution, military conflict, income inequality, social justice and climate change. We are quick to claim that these are different -- and justifiably so, since several involve questions of life and death, and humanity’s future. Yet, in the years to come, the church and society will continue to evolve. In time, some of these issues may fade from relevance. A few may be resolved. Others may remain in dispute. One thing is certain, however: those of us who are in leadership today with strong opinions will gradually be marginalized by age and eventually absent by death. The current generation of leaders has moved past the disputes I remember as a teenager in the church, and the generation to come will do the same in time. Thus, the question is not about who will win the debate and discredit or assert control over the others. It is, “How can we work together despite our differences?”
I often have felt these disputes have much more to do with an underlying view of the Bible and its perceived or assumed authority. As quoted in Inside Higher Ed, my colleague Thomas White, president of Cedarville University, noted, “This decision means that the CCCU and Christian universities will have to clarify their position on biblical marriage. We welcome this opportunity, and we welcome the opportunity to stand with other universities that believe in biblical authority.” The line has now been drawn. At the extremes, some Christians see the Scriptures as a grand narrative and others as the literal word of God recorded by dictation. The former are accused of relativism; the latter are accused of bibliolatry. The expectation for adherence to either extreme will be of little benefit, as there is a vast spectrum of views in between those poles.
I cannot predict what issues the church and its affiliated organizations will face in the generations to come. History teaches us, however, that disagreements will be inevitable. Through such times, we must rely on our capacity to bear the complexities of relationships and resist the urge to either withdraw ourselves or expel others from an affiliation over differing views.
The net result of the current dispute within the CCCU suggests that those who chose to leave the organization in protest over the lack of an immediate response to expel the offending members will not return to the organization. For them, the damage is done. Those who were under scrutiny given a change in institutional posture on same-sex marriage elected to withdraw to avoid further conflict. For them, the damage is done. Those who remain now appear ready to create a more clearly defined set of boundary conditions and stipulations for membership, which will invariably expose even more areas of disagreement. For them, more damage is yet to come.
This is a recipe for a gradual unraveling of an immensely important organization in the higher education landscape, and it should certainly be avoided. These institutions carry rich intellectual traditions that should be explored and honored. They sponsor important conversations related to the relationship of faith and learning. Together they serve a constituency that relies on their continuing and collective strength at a time when societal shifts are buffeting many churches and church-affiliated organizations. Through all this, no individual college or university is being asked to change its theological position, its statement of faith, its worldview or its practice of ministry. What we are being told is that the simple association with those who differ is now untenable.
If the CCCU attempts to establish a set of purity tests for members over a range of longstanding or emerging theological disputes that are further complicated by intervening social and political ideologies, then unity will be lost and this organization will be in peril. Splits within churches, denominations and affiliated organizations over such disputes are not new. Yet, in the end, little is accomplished, and future generations will scratch their heads wondering why we allowed ourselves to dissolve into fragments, far less effective in achieving the overall mission of the church, simply because we could not bear the weight of relationship.
The advice of St. Paul in his letter to the church in Rome remains good advice for today:
Welcome those who are weak in faith, but not for the purpose of quarreling over opinions. Some believe in eating anything, while the weak eat only vegetables. Those who eat must not despise those who abstain, and those who abstain must not pass judgment on those who eat; for God has welcomed them. Who are you to pass judgment on servants of another? It is before their own lord that they stand or fall. And they will be upheld, for the Lord is able to make them stand. Some judge one day to be better than another, while others judge all days to be alike. Let all be fully convinced in their own minds. Those who observe the day, observe it in honor of the Lord. Also those who eat, eat in honor of the Lord, since they give thanks to God; while those who abstain, abstain in honor of the Lord and give thanks to God. (Romans 14:1-6 [NRSV])
Mark Putnam is president of Central College, in Iowa.
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.