Increasingly, religion was looking more like the oppressor than the victim. Why should a Christian baker or photographer be able to turn down same-sex couples looking for wedding services? Why should a church get to limit its building to heterosexual wedding ceremonies? Why should a college get to limit its hiring to those who believe in traditional marriage? Why couldn’t a university assign dorm rooms based on preferred gender identity?

Last week, Democratic presidential candidate Beto O’Rourke told a CNN town hall that religious institutions—from colleges to churches—should lose their tax-exempt status for opposing same-sex marriage.

The same day, Elizabeth Warren, who leads the Democratic field, wrote that she would “use every legal tool we have to make sure that LGBTQ+ people can live free from discrimination,” including passing the Equality Act, refusing federal grants to organizations that oppose the hiring of practicing LGBTQ+ individuals, and limiting religious exemptions to faith-based colleges.

For Christian college presidents and boards, the language is alarming—but not entirely unexpected.

Five years ago, the Obama administration told schools to treat transgender students according to their preferred gender. Two years later, the administration explained that meant allowing transgender students to “participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.”

“Most of us went to bed on election night [2016] thinking, I have to get up tomorrow and think about defending religious freedom,” Covenant College president Derek Halvorson said. “Then we woke up and said, ‘Oh my goodness. What happened? I don’t know what this means, but I think we’re getting a reprieve.’”

The reprieve was bigger than they could’ve imagined—President Trump appointed Calvin College graduate and school-choice advocate Betsy DeVos as his secretary of education.

Under her direction, the Obama letter instructions were rolled back. Then she announced a bill that would give federal income tax credits to those who contribute to private K-12 scholarship funds, proposed lifting any remaining restrictions on religious colleges’ ability to receive federal aid through programs like work-study, and began working to better define “religious mission” in the Higher Education Act, which could offer another line of protection against government regulations and potentially hostile accrediting bodies.

But at the Council for Christian Colleges and Universities (CCCU), “we’ve never relaxed our advocacy on these issues,” said CCCU president Shirley Hoogstra. “There’s been no backing up. In fact, [pressure to conform on same-sex issues] has been accelerating through culture.”

Over the last several years, Christian colleges have been running calculations on how they might survive without government funding. They’ve appointed committees to look into other options. They’ve joined accreditation commissions. And the CCCU has filed amicus briefs on religious freedom cases, worked with the Department of Education on regulations, and advocated for Fairness for All—drafted legislation that would add LGBTQ rights to federal civil-rights laws in exchange for religious exemptions.

Not everyone agrees Fairness for All is the way forward. The trouble is, there is no clear way forward.

“The concerns are very real,” said former CCCU board chair David Dockery, who finds Fairness for All “well-intentioned, but a less than satisfying option.”

“The issues potentially affect hiring rights, student life policies, funding, tax-exempt status, and accreditation,” he said. “It certainly keeps one up at night because there’s no obvious answer, no clear strategy.”

Nobody knows exactly what to do.

From RFRA to Equality Act

On the same day in March 1993, a Democratic senator and a Democratic representative introduced a bill bolstering religious freedom. The Religious Freedom Restoration Act (RFRA) said the government could only “burden a person’s exercise of religion” to advance a “compelling government interest”—and even then, it had to use the least restrictive way.

The bill was enormously popular, passing unanimously in the House of Representatives and missing only three votes in the Senate. Democratic president Bill Clinton signed it into law.

But united approval immediately began to erode. Four years later, the Supreme Court ruled that RFRA didn’t apply to states. Two states had already passed their own versions, and 19 more would join them. But by the time Indiana got around to it in 2015, the criticism was so loud that a follow-up amendment was quickly passed. When Georgia tried in 2016, governor Nathan Deal vetoed it after multiple celebrities, the National Football League, and the Walt Disney Company threatened to pull operations from the state if it became law.

The biggest objection was that religious liberty would step on gay rights. Cultural support was rising rapidly for same-sex marriage (from 35 percent in 1999 to 60 percent in 2015), equal access to employment (83 percent in 1999 to 93 percent in 2019), and the legal right to adopt (49 percent in 2003 to 63 percent in 2014).

Increasingly, religion was looking more like the oppressor than the victim. Why should a Christian baker or photographer be able to turn down same-sex couples looking for wedding services? Why should a church get to limit its building to heterosexual wedding ceremonies? Why should a college get to limit its hiring to those who believe in traditional marriage? Why couldn’t a university assign dorm rooms based on preferred gender identity?

These ideas are clashing in all three branches of the federal government—and Christian colleges are worried about every one.

Legislative: Equality Act

This spring, the House of Representatives passed the Equality Act with no religious exceptions. In fact, it specifically noted that RFRA “shall not” be used as a defense. That means all colleges—and other faith-based organizations, from adoption agencies to homeless shelters to TGC—that want to impose sexual standards for employees or clients or students would be violating the law.

“Based on the Equality Act, SOGI [sexual orientation and gender identity] rights would override religious liberty,” AND Campaign founder and political strategist Justin Giboney said. “There would not be any exemptions for faith-based institutions. It’s really problematic.”

Michael Wear, author of Reclaiming Hope: Lessons Learned in the Obama White House About the Future of Faith in America, said the lack of exemptions is “unwise” and “unlikely to pass.”

He’s right, for now. The Equality Act stalled in a Republican-controlled Senate, and it’s improbable that Democrats—now numbering 45, with two Independents who caucus with them—will gain the seats needed (60) to break a likely Republican filibuster and move the Act on to the White House.

“The worrisome scenario is one in which the Democrats hold the House, take the White House, take the Senate, and abolish the legislative filibuster,” said Greg Baylor, senior counsel for Alliance Defending Freedom’s and director of the Center for Religious Schools. “This scenario probably won’t unfold in 2020, but, if it did, the threat would be very serious.”

Judicial: Three Cases

Just as concerning is the trio of cases in front of the Supreme Court this fall. Justices will decide whether sex discrimination in employment—prohibited by Title VII of the Civil Rights Act of 1964—should be expanded to include sexual orientation and gender identity. (Should a boss be able to fire an employee for being openly homosexual? Should a funeral home owner be able to fire a director because he now identifies and dresses as a woman?)

Reframing “sex” as “sexual orientation and gender identity” and banning hiring practices based on both would “have consequences for religious institutions of higher education ranging far beyond employment requirements,” states an amicus brief submitted by the CCCU. “Student housing standards would face new pressure. Affiliated clinics and hospitals could be compelled to provide religiously objectionable medical procedures. A religious university’s tax-exempt status could be challenged or revoked. Accreditation agencies could rely on Title VII as justification to disregard a university’s religious mission.”

The court heard oral arguments this month and will probably issue an opinion next June. Five of the nine justices are generally conservative, and Chief Justice John Roberts asked directly about religious exemptions.

However, the discussions didn’t make it clear which way the decision would go.

“The justices appeared to be closely divided on the merits,” Becket Fund for Religious Liberty senior counsel Luke Goodrich said. “It is hard to predict the outcome.”

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