As was demonstrated by California Senate Bill 1146, higher education is a present, and, certainly, future battleground over the place of religion in American public life. The California ballot measure would have restricted the availability of state funding for economically disadvantaged and minority students who chose to attend private, religiously affiliated schools. While purporting to eliminate religious discrimination, the law would have introduced new discrimination by coercively punishing religious beliefs on matters related to human sexuality. The bill would have effectively prevented religious institutions from setting expectations of belief and conduct that align with the institution’s religious beliefs. While the California ballot measure was amended for 2016, dropping the most restrictive language, the sponsoring senator has stated that he intends to bring the same issue again next year.
In what ways do institutions of higher education face specific challenges to religious freedoms? What are the contributions of religious institutions of higher learning to both specific faith communities and American society at large? Why is protecting religious freedom in higher education of significant importance?
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We are now weeks out since 2016’s gravest threat to religious liberty, California’s SB 1146, was stalled. As a quick review, SB 1146 was a bill that would have severely impacted the free exercise of religious liberty in higher education; and would have disproportionally harmed minority students in the process. Narrowing the types of schools that could receive exemptions from California’s anti-discrimination law, the law’s effect would have been to put any school that upholds traditional morality on sex and gender on the wrong side of the law. This would put a school’s eligibility for participation in state grant programs for needy students in limbo.
For a full review of the bill’s purpose, its impact, and a review of the strategy taken to fight against it I would point readers to my essays in National Review and Public Discourse. I would point particular attention to the Ethics and Religious Liberty Commission’s “Protecting the Future of Religious Liberty in Higher Education,” which assembled a broad coalition of voices from across the religious and political spectrum speaking out against the impact of SB 1146.
In this post, I want to focus briefly on the type of religious battle that occurred amidst the debate around SB 1146 and discuss the good, bad, and ugly elements of how religious liberty stands to be impacted institutionally.
By “institutional” religious liberty, I mean to separate out the claims of religious liberty violations made by private actors engaged in commercial enterprises. Thus, for the purposes of this blog post, excise the discussion around the debates concerning cake bakers, florists, and photographers who have declined to use their creative services for same-sex weddings. For the purposes of this blog post, “institutional” religious liberty refers to the free exercise of religious liberty by institutions like colleges and universities.
The good, obviously, was SB 1146’s failure to pass—especially considering its origins in a deep blue and progressive state like California. Had SB 1146 passed, it would have given momentum to other states to go after institutions of higher learning that do not agree with progressive sexual morality. The bill’s failure to pass is symbolic because similar measures are less likely to be pursued due to the lessons learned in California.
An additional outcome that bears discussing is that going after religious institutions whose very mission is guided by religious ethos proved to be a bridge too far. The culture warriors on the Left ought to take pause and evaluate how egregious their actions were considered—even by fellow liberals. Rather obviously, religious schools are guided by religious conviction. To gut religious identity that conflicts with contestable state law is to gut religious liberty and the essence of religious education itself.
This means that the vitality of religious liberty for institutions of higher education remains relatively strong, despite SB 1146’s aggression.
One of the great fears facing religious conservative in a post-Obergefell world is the question of how aggressive LGBT advocates will go in bringing every institution to heel. Will “opting out” be possible in the long run? Or will robust interpretations of the First Amendment and the Religious Freedom Restoration Act prevail? Will attempts be made to go after every school over every facet of their existence that conflicts with progressive sexual morality? From one vantage point, religious liberty exists in order to give as much freedom as is possible to religious dissenters. Tragically, with sexual progressives, the presumption of liberty is no longer safe. LGBT progressives appear poised to use anti-discrimination law to root out any institution that fails to agree with its demands.
While a veritable free market of other school options exists for students to choose from in California, the willingness of LGBT proponents to use anti-discrimination law as a wedge for uniformity is deeply discouraging. “Live and let live” is a dying refrain from cultural progressives.
Despite the reality that SB 1146 was met with stiff opposition and effective countermeasures, the debate shows no sign of abating. The bill’s sponsor has pledged continued study of the issue, and is likely to introduce a similar measure in coming legislative years.
Despite a “win” in California, institutional religious liberty is still in jeopardy. Efforts through federal legislation like the Equality Act would put the tax-exempt status and accreditation of religious schools at stake. The fact these outcomes are now seen as viable threats ought to send a shutter down the spine of religious conservatives and awaken them from their slumbers.
Moreover, at the federal level, legislation like the Equality Act and the Do No Harm Act pledge to bring as much difficulty to the national conversation as SB 1146 was willing to bring to the state level. While California’s religious community was able to successfully push back against SB 1146, the fact remains that national groups like the Human Rights Campaign are more than willing to bring similar measures to every state’s doorstep through federal legislation.
In the short term, true pluralists should rejoice that heavy-handed affronts to liberty were quelled in California.
Andrew T. Walker serves as Director of Policy Studies at The Ethics and Religious Liberty Commission. He is also a PhD student in Christian Ethics and Public Theology at The Southern Baptist Theological Seminary. His dissertation will focus on religious liberty.
**All views and opinions presented in this essay are solely those of the author and publication on Cornerstone does not represent an endorsement or agreement from the Religious Freedom Institute or its leadership.**