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Section 66271 of the Education Code is repealed.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


Anti-racist Yard Sale

Hi Cogitators, after a bit of a hiatus, the Cogitduck comic strip is back!  I’ve revamped the aspect ratio to conform to a newspaper comic slot (wink, wink).  I also sketched and “inked” this on a Galaxy Note 10.1 tablet.  The S-Pen is pretty sweet!

For more info on the invisible knapsack of privilege, see one of my very first posts.  For my past references to the racist dog whistle, revisit my commentary on Dinesh D’Souza’s 2016, or my critique of a 2012 guide to decoding racist political ads.  And, most importantly of all, to learn about what Margaret Thatcher lamented as “anti-racist mathematics, whatever that may be,” visit here.

Is higher education really in crisis?


I received a friendly invitation from Consider Again to comment on his latest post about the higher education bubble.  In making my comment, I found I had a full blown post.

Indeed, the bubble exists.  There is an “irrational exuberance” on the part of consumers with respect to higher education.  For deeply ingrained cultural reasons, demand for the product is highly inelastic.  It would be cathartic for the bubble to burst.  Better yet, for it to gently deflate.

The idea of crisis or a problem with higher education itself is largely illusory.  The real problem is that so many people expect the four year college experience to supplant a maturation process that should have happened while the child was still at home.  The problem will resolve only when our culture accepts that college should not be a necessity for each individual’s success.

It seems consumers value higher education for two distinct purposes.  First is the classic humanist ideal that education helps you become a better person.  Second is the economic utility that comes from enhancing the future marketability of the student’s labor.  Our society suffers needlessly for expecting higher education to deliver these two values together.  We’d do better to ensure that formation of a good citizen comes first, and is effectively carried out by the K-12 system.  Then, if parents and students choose, they may pursue higher education to enhance job prospects or to gain admittance into specialized careers.

The ongoing failure of the K-12 system to consistently produce well-informed citizens is a major drag on higher education.  There’s misguided pressure on universities to make up for that failure.  The University of California campuses implement some form of a “general education” requirement that is supposed to ensure a well-rounded experience.  But why duplicate what should have been done at the K-12 level?  At least the system could excuse students who grew up in state and should have already met the state’s basic standards.

Consumers aren’t the only ones to overestimate the value of an education.  The producers are just as off-base.  State universities are keen to stay competitive with top private universities that thrive off of massive endowments.  Neither state nor Federal taxpayer dollars can make up the gap for administrator salaries or luxury dorms in the higher ed arms race, let alone keep up with the steadily rising cost of worker health and retirement benefits.

This reality of course irks those who read a progressive sense of fairness and equality into the land grant mission.  But look how land grant universities started.  Only a small fraction of the work force utilized the system.  In the postwar period, that fraction grew remarkably.  Stuck between ever increasing enrollment, a highly competitive environment, and an all around disdain for tuition hikes, land grant schools have become just another victim of rising expectations.  It would take a very brave university president or chancellor to level with his or her community and declare the truth that too much is being offered to too many for too little.  Something has to give.

Then again, remember the higher ed crisis is illusory.  Like the White House’s current gun control drive, this is a propped up anxiety meant as news fodder.  The reality is that any prospective student worth her salt has the ability to take stock of a vast array of potential educational options, earn, borrow, or be awarded money for that end, and set goals accordingly.  A pricey four-year university education may be what she needs.  Then again, some of the happiest and most well off people in our society are those who never went to college.

Market reform: nothing too sacred

Recent days have seen major policy movements with respect to higher education and health care, two segments of the economy sorely in need of reform.  You probably did not miss last week’s NFIB v. Sebelius decision, better known as the Obamacare ruling.  Its headlines eclipsed the expected and relatively uncontroversial extension of Stafford student loan interest rates.

Unfortunately neither of these recent actions will do much to mitigate the twin crises in higher education and health care.  A reverential aura surrounding these fields blocks what could really help: serious market-based reforms.  While much of the problem is budgetary in nature, respective stakeholders are wary of commoditizing the near-sacred work they do.

Market advocates must deal with some serious objections: How can a price be put on teaching students how to think?  Is it moral to triage life-saving services on ability to pay?  Core values like critical thinking, equality, and compassion are at stake.  To address these challenges, let’s review what it is that makes the free market so great.

The Reality of Scarcity

First, markets operate on the assumption of scarcity, the idea that resources are finite.  This should be fairly uncontroversial, but there’s a powerful tendency in human nature to discount this reality.  Think of how the Federal government is so unpopular on the Right.  This is because it has tools at its disposal to deny fiscal truth.  It can print money or engage in deficit spending–things that state governments cannot do.  Perhaps nothing is more important to determining societal norms than fidelity to reality.  This must include a practical acknowledgement of scarcity.

Delivering Accountability

Second, markets are the best means of achieving accountability.  A market consists of rational agents entering into voluntary transactions under a fixed set of rules.  When it is relatively free of interventions, both consumers and suppliers naturally look to maximize their own self-interest.

It’s a necessary aside to admit that such an idea makes many uneasy.  We recall the simple and sure moral learned in childhood: don’t be selfish, don’t be greedy.  People presume illegality when they think of the market imperative to maximize utility or profit. Crooks like Bernie Madoff and Gordon Gekko commonly come to mind.  But the concern is utterly irrelevant.  Any society worth it’s salt is founded on the effective rule of law.  The free market assumes this, and any alternative system must deal with the same consideration.

Free markets breed accountability because rational actors must seek the most bang for their buck.  But say that a consumer comes to anticipate occasional interventions, like a benefactor dropping a huge cash subsidy in his lap.  He will rationally adjust his expectations, no longer accountable to material reality, but to the sociopolitical reality he reads from a market distortion.

Prices communicate truth, reveal what we value

This takes us to the third virtue of markets, which is the informational role of price.  There are countless examples of governments attempting to control prices in the modern era, just about all of them disastrous.  This is because prices, like language, transmit information about reality.  They inform us whether a good or service is relatively abundant or scarce, easy to produce or exacted only with great effort.  To adjust a price away from its market value is either to lie or to posit that some competing value trumps truth.  Typically, this is something like charity, equality, or decency.  Yes these are worthy ideals, but it’s immoral to superimpose a brute desire for better social conditions over an accurate grasp of economic reality.

Even our most cherished ideals come at a price.  That’s why we call them “values.”  Market prices, subsidies, and taxes all contribute to a picture, a mirror if you will, by which societies can see what they really value.  Diamonds are pricey because of the social significance we assign them.  We see the Federal government values green energy–correctly or not–because of the subsides it gives in its name.  From national security to food stamps to Baby Einstein videos, we can grasp what a society values by how much is produced, consumed, paid, subsidized and taxed toward the respective ends.

Shielded from reality

Medicine and education are very high callings, their integrity guarded at times with something approaching religious zeal.  Last winter, in inveighing against the presence of U.S. Bank, a California Aggie editorial declared the campus a “sacred place” in need of protection from bank profiteering.  By contrast, a recent Wall Street Journal editorial is right to criticize the circled wagons of higher education as a “Green zone” where reality does not apply.

The academic pursuit of truth, and the transmission of the discipline to the next generation, are indispensable to society.  Yet, inasmuch as the academy serves society–and not vice versa–all its constituent enterprises must submit themselves to fiscal accountability.  The self-selecting institution of tenure especially needs to justify to the outside world, in some formal way, its oft-wildly ranging research pursuits.  Let’s allow the market to deliver accountability.

The healthcare industry also needs this help.  Policy has been tied up for so long in questions of access and affordability that the field is virtually disconnected from the salubrious effects of the market.  Things will only improve when consumers, loosed from subsidies, internalize the value of the myriad services they pursue.  I’ve been a fan of high-deductible insurance plans.  And the earthshaking decoupling of insurance from employment benefits is essential.  To have a multitude of companies actually competing for customers will do more to eliminate waste and drive down prices than the amalgam of regulatory magical thinking known as the “Affordable” Care Act ever could.

At what cost?
Is the price of submitting the highly-esteemed callings of medicine and education to market forces too steep?  We can learn a lesson from Christian apologist Ravi Zacharias.  As he writes in Can Man Live Without God, even faith itself is about making a choice and paying a cost:

Oscar Wilde once said that we do not appreciate sunsets because we do not have to pay for them.  Oscar Wilde was wrong.  We can “pay” for sunsets by living in accordance with the purpose of our Creator and of His grand design.

No ideal is too sacred to be untouched by the fact that life is about measuring costs and making choices.  There is nothing profane and everything noble about squaring our actions and aligning our values with reality.  Markets are the best way we can collectively make choices based on knowledge of value, and as such ought to be embraced.

SOTU 2012: The Tax Loophole Jump

SOTU 2012:The Business Tax Loophole Jump


There were some nice things about Tuesday’s State of the Union Address:  Representative Gifford’s recovery, the accomplishments of our awesome Navy SEALs, and Mitch Daniels’ well-spoken and clever GOP response.  And there were some not so nice things.

Looking at the fiscal picture, President Obama’s speech boiled down to two proposals: shuffling business tax credits and asking for more money on things we already spend a lot on.  Among the various behaviors the President aspires to manipulate through a fresh scrambling of our already deeply convoluted tax code: who businesses hire, how much they pay those employees, what  manufacturers make, and where they make those things.  Has the White House not gotten one of those memos on tax simplification?  What ever happened to the recommendations from the Simpson-Bowles report they commissioned?  All of the new tax credits (read: loopholes) will only distort market behavior.  And market distortions are “what got us into this mess.”

Then there are the new outlays he requested.  First, to create a new bureaucracy, the Trade Enforcement Unit.  I think he is going for the Jack Bauer vote by calling it a unit, as in “Counterterrorism Unit (CTU).”  Its a worthy cause, but can’t it be done by retasking existing agencies?  Next on the list is money to transform community colleges into “community career centers.”  I don’t know what they were before if not that!  Just a place to find a date for Friday night?  Finally, he asked us to fork more money over for teachers.  But it seems like school voucher programs don’t count.  Democrats only accept more money for education when it doesn’t threaten unions.

I don’t think our President has managed to outdo himself in 2012.  Last year’s “Winning the Future” (WTF) theme with $53 billion for high speed rail projects is just too tough to beat.  And that outlandish record will hopefully stand if this State of the Union address is President Obama’s last.

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