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Section 66271 of the Education Code is repealed.


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:


 (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 16th and 17th 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 / CC BY-NC-ND


Economics and fairness: California’s Prop 29

Last Wednesday I was listening to Insight, a locally-produced public radio show.  Jim Knox of the American Cancer Society was on promoting Proposition 29 in advance of this Tuesday’s California primary election.  Sharing air time with Prop 29 detractor David Spady, he mentioned tobacco company funding every other sentence, seeking to trigger anti-corporate, Pavlovian antipathies in the listening audience.  More striking though was his argument that California is only one of three states that has not raised tobacco taxes in the 21st century.  Heaven forbid the Golden state fall behind the unyielding curve of progress!

Two previous, successful propositions in 1988 and 1998 have brought California’s current cigarette tax to $1.87 a pack.  Prop 29 proponents anticipate it would raise an additional $700 million annually, deter youths from picking up smoking, and get 110,000 adults to quit the habit.  That’s possible, but given the inelastic demand of a highly addictive product, such a steep price increase will unleash a number of unintended consequences.

On Prop 29’s passing, many smokers would simply shift to alternative forms of consumption.  For all the trouble of a new bureaucracy, the state would end up arbitrarily boosting the home-rolled industry at the expense of cigarette pack producers.  With the tax hike, some smokers would make more purchases out of state.  Yet others would resort to stealing from vendors or neighbors.  Even if not victimized by robbery or theft, convenience stores would lose revenue on impulse buys incidental to a cigarette run.

The tax would burden a concentration of the vulnerable: the addicted, those suffering from smoking-related health impacts, lower-income persons, and the businesses that serve them.  Perversely, those who would benefit most would be relatively well-to-do researchers and scientists.  Talk about reverse Robin Hood!  Nothing wrong with getting wealthy, but it’s unjust and inefficient when redistribution occurs through such ill-considered legislative interventions.

Arthur Brooks, who has been promoting his pro-market ethical manifesto The Road to Freedom, decries not just the harm but immorality that comes from the one-way push for ever more taxation and regulation.  It’s easy and often that a society decides through government that a certain problem exists and can be solved by taking money from one place and throwing it at another.  This is the profound moral hazard that every democracy must surmount if it is to survive.  California’s prospects prove dimmer with each election.  On the flip side, we have to bottom out at some point, right?

Thoughts on San Francisco

Yesterday I visited the California Academy of Sciences in the heart of San Francisco’s Golden Gate Park.  As beautiful and therapeutic as the city’s green expanse is, folks from flyover country can’t easily forget just what an epicenter of liberalism it is either.  Less than a week after Mayor Ed Lee renamed prosaic-sounding Middle East Drive, I had the honor of seeing with my own eyes the newly-christened Nancy Pelosi Drive.

I can imagine the mayor telling the city council they would have to pass the renaming measure before they could find out what the street would be called.

Now there’s been a great ballyhoo about the U.S. Census release claiming that white babies are now a minority.  If you’re somehow concerned about this, don’t worry; all the unaccounted-for white kids can be found being pushed in strollers through the California Academy of Sciences museum.  There, they learn valuable truths, like the fact that toilet bowls do not harbor a safe supply of emergency drinking water.  Seriously though, I did enjoy exhibits like the rain forest and the planetarium show.

Like many other Americans, I drove a car to reach my Memorial Day weekend destination. Coming from the Sacramento Valley–which is worthy of the flyover country honorific in it’s own right–I decided to skip the parking lot that is called Berkeley, taking instead the scenic U.S. Highway 1/101 south.  As I passed Muir Woods, I was reminded of last year’s blockbuster remake Rise of the Planet of the Apes.  In the film’s climax, sentient apes escape a grossly distorted, Hollywood version of San Francisco, fighting authorities in a pitched battle on the Golden Gate Bridge before swinging to the freedom of Muir Woods.

What do I mean by a distorted, Hollywood version of San Francisco?  The protagonist’s neighborhood looks less like a crunched row of Victorian three-story homes than it does a line of oak-shaded tracts transplanted from the middle of Anytown, USA.  There are no hemp-adorned hippies, hat-and-beard hipsters, or any hint of Chinatown.  The film depicts no Asian-Americans save the heroine, India’s Frida Pinto.  That there would be a corporate science facility doing testing on primates in the environmentalist Mecca-by-the-bay strains viewers’ credulity.  And rather than flee before the apes, some San Franciscans would surely take to their side to hurl rocks against mounted police.

In one sense, I suppose I shouldn’t find these logical lapses strange or noteworthy.  After all, Hollywood, like much of the rest of the Golden State, is a land where make believe rules.

California Rust Belt?

Election day is less than two weeks away, and political ads are saturating California’s airwaves.  And since both Democrats and Republicans have exhausted their brand credibility in recent years, candidates are reluctant to even mention their party affiliation.  But the discerning listener need only catch a few buzz words to know who’s who.

Anytime I hear an ad slamming Wall Street bonuses, billionaire tax breaks, or Texas oil companies, I know to vote the other way.  Castigating big business and playing up class war are the bread and butter of liberals and Democrats.  They proclaim that some big, wealthy person or corporation does not have your best interests in mind.  The implication is, then, that some Democrat will be the altruistic champion of your cause.  But Democrats have no incentive to be responsive or responsible; they have a lock on unions, youth, academics, and self-perceived victim groups.  As Amity Shlaes reminds us in The Forgotten Man, they have been working with the same basic backscratching coalitions since FDR’s 1936 reelection.  This unpleasant fact aside, altruism is not something we should be looking for in a candidate anyway.  As Ronald Reagan said, the ten most dreaded words in the English language are, “Hi, I’m from the government, and I’m here to help.”

What then, is the answer?  Mutual self-interest.  Adam Smith observed more than two centuries ago the synergistic effects when two people agree to cooperate not on the basis of need or compulsion, but willingly and in their own interests.  With the exodus of talent and capital, and our overextended public liabilities, its time for Californians to stop buying the idea of a free lunch.

In debate and in ads, Jerry Brown harps on Meg Whitman for advocating an easing of taxes on billionaires as if she was only looking out for herself.  And in a local U.S. House race, an ad for Jerry McNurney accuses David Harmer of helping out his “Wall Street buddies.”  These allegations don’t bother me one bit, because I know that we need business friendly policies here in California.  We don’t have the luxury to be envious, jealous, or spiteful against high-income earners.  They provide the jobs, they put their capital on the line, and they get milked by Federal, state and local taxes.  Their money does not go into some vault they swim in like they were Scrooge McDuck.  Through stocks, bonds, or directly, productive people reinvest their money in productive enterprise to make even more money.  And that’s where we can hope to benefit with new private sector jobs–only if our state’s policies are lucrative enough to attract those investments.

Its time for Californians to wake up from the deadly myth that big business and high-income earners can be tapped without limit for progressive causes.  If we vote in people like Carly Fiorina and Meg Whitman, we can turn the corner and keep California from becoming the newest Rust Belt state.  But if we fail in that measure, you might as well pack your bags for North Dakota.

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