Assuming that SB 1146 passes and is signed into law by Governor Jerry Brown, California’s religious colleges and universities will be put to the test. They will have to decide whether to refuse to comply and litigate the issue, forgo benefits from significant state funding, acquiesce and modify their non-discrimination policies, close down, or move out-of-state.

This post is an update to yesterday’s article, An Imminent Attack on Religious Liberty.

On June 30, a piece of proposed state legislation made its way to the California State Assembly Committee on Judiciary. The bill (SB 1146) has already passed in the state senate by a vote of 26–13.

The next stop for the bill, at this point, is the Assembly Committee on Appropriations, before it goes to the floor for a vote. Because the bill is continually being amended, an analysis of the bill as it currently stands can be read here. Or, for a more readable interpretation of the bill, see here.

The goal of this post is to answer some basic questions about this proposed piece of legislation. 

1. What is the basic premise of SB 1146?

SB 1146 prohibits private/religious colleges and universities in California from “discriminating” against LGBT students, faculty, or staff members, even if LGBT lifestyles run contrary to that institution’s religious beliefs.

Students, faculty, or staff who think they have been the object of discrimination based on their sexual orientation, gender identity, or gender expression can sue the institution for discrimination. Because the Bible identifies homosexuality as a sin, it is not difficult to see how Bible-teaching colleges and universities will be accused of discrimination under the new law.

Furthermore, institutions that wish to file for any kind of exemption from Title IX of the Education Amendments of 1972 (federal law governing anti-discrimination policies in education) must publicly notify their students and staff of that exemption. According to Michael Peabody, such public notifications can actually be used as evidence against the institution in the event of a lawsuit:

Students can sue for money or an injunction if they think they are being discriminated against by a religious college or university. If they happen to sue an institution that is disclosing its Title IX exemption, the fact that institutions have exercised a Federal right to an exemption could be used as evidence against them in state court. (Source)

Peabody goes on to offer this helpful summary of the bill:

First, SB 1146 will require religious colleges and universities to adopt policies of non-discrimination on the basis of sexual orientation in order for students to receive state-funded scholarships under the Cal Grant program. Secondly, SB 1146 will require these institutions to give notice if they have requested an exemption to Title IX. Thirdly, SB 1146 will permit lawsuits against institutions that are perceived to discriminate on the basis of sexual orientation regardless of whether they accept the Cal-Grant scholarships.

That final sentence is important because it indicates that religious institutions will be subject to SB 1146 whether they accept state financial aid or not.

2. What is the stated rationale behind the bill?

Supporters of the bill contend that this is a civil rights issue. The argument is basically as follows: in the same way that race-based discrimination should have no place in institutions of higher learning, so also discrimination on the basis of sexual orientation, gender identity, or gender expression should not be tolerated. Institutions in which such discrimination is reportedly found will be subject to punitive litigation.

Supporters of the bill are primarily targeting schools in which students receive federal and state financial aid (such as the Cal-Grant). They argue that such money should not be used to provide assistance to institutions that do not fully comply with anti-discrimination laws (specifically as those laws currently relate to those who identify as LGBT).

As noted above, however, even schools that do not receive government funding or financial aid may still be subject to anti-discrimination litigation under this bill.

By contrast, opponents of SB 1146 contend that this legislation violates the Free Exercise clause of the First Amendment—namely, the free exercise of religion—by requiring religious institutions to violate their moral principles in the name of tolerance. As Eric Metaxas points out, the California state government is using anti-discrimination laws as “a license to discriminate” against religious institutions.

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