As best I can tell, the concern of the ERLC statement is to protect religious institutions and low-income and minority groups. But that’s not the bill’s concern. The controversial provisions (now removed) sought to protect LGBT students. So that’s how its opponents should frame their argument. The problem with the bill isn’t just that it potentially hurts religious institutions. The problem isn’t just that it potentially hurts low-income and minority students. The problem with the controversial provision of SB 1146 is that it would have hurt the very people it sought to protect.
California Senate Bill 1146 (SB 1146) created an earthquake of controversy. “California Bill Would Ultimately Erase Religious Schools” ran a headline over at the Federalist. Last week a host of worthies—with competing religious and political views—jointly protested the bill via a public statement by the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention. The California state senator sponsoring SB 1146, Ricardo Lara, removed the bill’s controversial provision soon thereafter, as the Los Angeles Times reported. Was it the brilliance of the protest by the ERLC or just the new coordinated political activity by California’s private religious colleges and universities? Perhaps it’s both, but there’s reason to believe the arguments against the bill’s controversial provision won’t persuade its supporters. I want to offer an alternative, supplemental argument that may ultimately be unpersuasive—but it’s at least different.
First, the bill itself. The heart of the California bill largely removed exemptions religious institutions had under the state Equity in Higher Education Act and the federal Title IX. The only exemption was for institutions training clergy for religions with tenets that are incompatible with the application of the bill. Otherwise, any religious institution—Jewish, Protestant, Catholic, or Muslim—must arrange its institutional affairs so that gender choices and sexual activity are treated equally. As the bill read, an institution can enforce “rules of moral conduct” and establish “housing policies in accordance with these rules of moral conduct.” But there’s a catch: It can do so “if the rules are uniformly applicable to all students regardless of the student’s sexual orientation or gender identity.” A university could apply housing for married couples (to use an example from a prior version of the bill) only “if ‘married’ includes both married opposite-sex and married same-sex couples.”
In addition to political activism, the bill’s opponents make several claims. The ERLC statement makes—as best I can tell—two. First, there’s the question of religious freedom for California schools. Those holding religious beliefs on “contested matters related to human sexuality” will themselves be the recipients of discrimination. The signatories say the controversial provision (since removed) “would severely restrict the ability of religious education institutions to set expectations of belief and conduct that align with the institution’s religious tenets.” They make another claim: It would hurt low-income students and racial minorities. “If SB 1146 were to pass,” they say, “it would deny students’ ability to participate in state grant programs—programs that exist to help low-income students, and which are overwhelmingly used by racial minorities—at schools that are found in violation of the bill.” That’s not a concern now, because the state senator removed the controversial provision. But the issue isn’t going away, so it is worth talking about now, for the future.
Assuming the claims about state aid to students is true (why wouldn’t it be?), the ERLC statement strikes me as plausible. But there’s a deeper problem. I doubt these arguments will work. Here’s why: It protects the wrong people. As best I can tell, the concern of the ERLC statement is to protect religious institutions and low-income and minority groups. But that’s not the bill’s concern. The controversial provisions (now removed) sought to protect LGBT students. So that’s how its opponents should frame their argument. The problem with the bill isn’t just that it potentially hurts religious institutions. The problem isn’t just that it potentially hurts low-income and minority students. The problem with the controversial provision of SB 1146 is that it would have hurt the very people it sought to protect.
Does that sound farcical? It’s not. Consider this: Not every person who experiences same-sex attraction acts on it, or wants to do so. Not every person who acts on same-sex attraction wants to keep doing so, either. And not every person who resists same-sex attraction does so for the same reason.
We can’t just think about one kind of student, the LGBT student. There are at least three kinds of LGBT students at secular and religious institutions: those embracing their LGBT identity; those accepting it but not wanting to act on it, and, finally, those that move between the two. Let’s be candid: Different kinds of students will face different pressures at different institutions.
Consider a prospective student who fully embraces her LGBT identity. She enjoys her identity and does not want it stifled! It’s appropriate for religious institutions that would not affirm her identity to be explicit about not doing so. Students don’t want surprises, and that’s reasonable enough. Even if institutions were not so transparent, I find it hard to believe that a student whose sexual identity was crucial to her identity would simply not know what positions possible universities take on these issues. That’s not to say colleges have the right beliefs. It’s just to say the publicity requirement to save her from embarrassment has probably already been fulfilled. Given her self-understanding, let’s assume she goes to a state university or a private institution, where she will have her identity affirmed. After all, proof of LGBT sensitivity is a highly prized commodity: UCLA emphasizes the 20 year history of its resource center; Stanford’s center proudly proclaims both its internal and external awards.