California SB 1146: Religious liberty at stake

What’s the deal with California Senate Bill 1146? People have said it will shutter religious colleges and that it will reduce religious freedom, but I haven’t found an adequate account from the text of the legislation itself.

I am not a lawyer, but I am in the home stretch of earning a Master’s degree in Christian Apologetics from Biola University. Since close reading and ethical reasoning are significant components of my apologetics training, I think I can present a simple case against SB 1146.

Shrinking religious exemptions

First, what does the bill really do? In part, it changes language in the already existing California Education Code. Specifically, it shrinks the religious exemption in one part of the code, Section 66271. Whereas the section currently exempts all religious institutions from antidiscrimination enforcement, the current version of SB 1146 makes some indeterminate part of postsecondary religious instruction non-exempt:

SECTION 1.

Section 66271 of the Education Code is repealed.

66271.

This chapter shall not apply to an educational institution that is controlled by a religious organization if the application would not be consistent with the religious tenets of that organization.

SEC. 2.

Section 66271 is added to the Education Code, to read:

66271.

 (a) This chapter shall apply to a religious educational institution except with respect to prohibitions concerning religion.

The struck-out portion is the text of the Education Code to be replaced. So the exemption would go from saying “This chapter shall not apply” to “This chapter shall apply.” This is a significant change that requires a rationale in its own right. If the exemption was okay in previous years, why does it suddenly require a legislative change now? Voters and citizens deserve an answer.

Some previous reporting and advocacy citing the bill noted that instruction for ministry and vocational work would remain exempt, while other programs would not. A seminary handing out Master of Divinity degrees would be exempt as always, but a four-year program awarding degrees in biology or English would not be exempt from “civil remedies,” also known as lawsuits. However, this specific language was struck from the bill in the June 13 amendment. Currently, the scope of the exemption, is, in the words of the Assembly committee analysis, “unclear”:

Committee staff notes, however, that “except with respect to the prohibitions concerning religion” is undefined, and it is unclear whether this exception could result in allowable discrimination against a California protected class if the religious institutions determines that discrimination is consistent with the tenets of the religion.

Alternatively, if the concern is to clearly allow religious teachings, ceremonies and observances of a religious institution, the existing language of the bill could be amended to clearly allow religious ceremonies, teachings and other activities that may be required of students, faculty and staff of religious institutions.

This lack of clarity persists as of my writing this blog entry. If the bill is passed as-is, then students may well be green-lighted by administrators to sue because of teachings, ceremonies and observances that might be deemed discriminatory.

An Unfair Structural Assault on Religious Minorities

The power to sue is the power to deter and coerce, so it should not be held lightly. When small institutions (think of California’s Simpson College) might be shuttered due to the content of their doctrinal beliefs and behavioral standards, then that is effectively diminishing religious liberty. This is particularly true of the right for religious and intellectual minorities to reasonably act and think differently from the majority of society.

An objector might reply that private, religious schools have no right to Cal Grant money, another consideration effected by the bill. In this line of reasoning, religious schools need to comply by the rules that apply to all other schools. However, the withholding of Cal Grant money and a barrage of lawsuits would be an unfair burden suddenly imposed on theologically conservative California religious colleges, which are in a minority position regarding the nature of gender rights, among a host of other issues. This unfairness is structural and asymmetrical. It is structural injustice because it would produce a sweeping, one-time effect. It would not prevent the emergence of new religious schools independent of Cal Grant money. But it could shutter a large portion of existing California religious schools, dramatically changing the higher education landscape within the state. Although there might be a new baby later, the old baby would be thrown with the bath water.

The impact of SB 1146 is asymmetrical because a majority that prefers a certain uniformity in higher education would be imposing its will at the cost of a minority. And that real administrative cost on California religious colleges has been recognized in legislative analysis. To be clear, there are three different financial burdens religious colleges could potentially face: loss of Cal Grant funding for their students, penalties and costs arising from lawsuits, and administrative costs associated with posting exemptions (required by Section 3, addressed further below). Along with this are burdens imposed by being among the dissenting minority on the wrong side of the law.

Freedom of Association at Stake

I believe religious freedom is closely tied to freedom of association. In the case of SB 1146, what is at stake is the freedom to associate with a community that holds its members to self-imposed standards. At its best, this is the freedom to come together to accomplish shared positive goals that could not be achieved otherwise. In a pluralistic society, we try not to second guess, if we can, the goals of other voluntary associations. Undue concern for what goes on within other freely-formed groups results in repression, the very thing that progressives profess to oppose. If California were to impinge on individuals’ ability to freely associate, this would diminish an essential liberty that has served Americans well for 230 years.

Suspicion or Good Will?

Biola president Barry Corey said it well when he declared that Biola does not support bullying, and intends its space to be welcoming. The question with SB 1146 is whether California will assume religious colleges to be acting in good faith, as good will participants contributing to the common good, or whether it will regard religious colleges as inherently suspect.

Unfortunately, Section 3 of SB 1146 suggests the later, that religious schools should bear the burden of being suspect. This portion of the bill requires schools that receive exemptions from antidiscrimination measures to post this fact prominently on the campus and in correspondence with potential students. Progressives are rightly concerned with the stigmatization, shunning, and shaming of minorities. But does this apply two ways? In Nathaniel Hawthorne’s The Scarlet Letter, Hester Prynne is condemned to wear a scarlet letter ‘A’ on her blouse to remind her community members that she was found guilty of the sin of adultery. What the Section 3 notifications amount to is a scarlet ‘D’, intended to remind students, parents, and the rest of the world that certain religious schools are to be regarded suspiciously as discriminators. If antidiscrimination has anything to do with ending stigmatization, shunning, and shame, then Section 3 makes SB 1146’s purported goal of antidiscrimination internally inconsistent.

It’s an irony that some progressive activists might end up using SB 1146 as a puritanical tool of oppressing dissent and enforcing conformity. But rather than assuming the worst of each other, citizens in a pluralistic, democratic society must extend the assumption of good will as much as reason would allow. It takes two to tango. If one side–particularly the democratic majority–remains inflexible, then we will return to the historical state of confessionalism. In 16^th and 17^th century Europe, this was a time when those subjects who could not affirm their rulers’ religious creed were forced into exile. This is the antithesis of a liberal society. In Europe, the divide was between Protestants and Catholics. Today, the divide is between progressive ideological activists and those who dissent from their controversial orthodoxies. Biola and other California religious institutions seem to be responding with patience, charity, and civility in the face of what could otherwise be interpreted as divisive political action. If there is any hope for fairness and justice, it will not be fulfilled in legislating dissenting communities out of existence, but by heeding the admonition, “Come, let us reason together.”

Photo credit: janetvincent via Foter.com / CC BY-NC-ND