The Briefing 01-07-16

Part I

---

Religious liberty and LGBT rights are on a collision course in 2016

“The issue remains unresolved.”

So wrote Michelle Boorstein of the Washington Post, and she wrote this on the very last day of 2015. As last year came to an end and as 2016 is now upon us, we see several very important articles telling us that one of the most crucial issues surely to be faced in 2016 is the inevitable collision between religious liberty and LGBT rights. Boorstein writes about the fact that, as she says,

“The fight over whether gay marriage should be legal ended in 2015. But the issue remains unresolved for conservative faith groups, leading to continuing battles between the thousands of schools, non-profits and houses of worship run by conservative faith groups and any gay and lesbian employees who may work for them.”

Now before we go even any further beyond this, we have to note what we see in the opening sentences of this article; and it’s noteworthy once again to realize that it appeared on the last day of 2015 looking to the future, and it appeared in the Washington Post. Michelle Boorstein tells us that there is this inevitable collision, because in her words,

“The issue remains unresolved.”

That reminds us of what happened back in 2015 when the Supreme Court handed down its Obergefell decision legalizing same-sex marriage in all 50 states. In the oral arguments for that case, the Chief Justice of the United States asked the Solicitor General of the United States, representing the Obama Administration, if a religious school that had married student housing would be required to violate its religious convictions if same-sex marriage were to become legal. The Solicitor General offered these very memorable words—haunting words. He said,

“It will be an issue.”

Keep those words in mind when Michelle Boorstein writes,

“The issue remains unresolved.”

This is an alarm. It’s a warning that should go off to all evangelical Christians—for that matter to all conservative religious groups—that the religious liberty rights that we have counted on since the founding of the American Republic are now very much in question, and they are in question specifically because of the rise of what I call erotic liberty, a notion of sexual liberty that in our contemporary postmodern context trumps religious liberty in the minds of the secular elites, increasingly in the minds of many politicians and people in government, not to mention in law schools and the courts. Michelle Boorstein says that,

“A source of contention is the word ‘ministry.’”

She writes,

“Courts have established without question that churches can pick their own ministers. But for some faith-based groups, everyone is part of spreading the faith.”

Boorstein writes about religious colleges and universities, and in particular other nonprofits such as adoption agencies or children’s homes, and he writes about the fact that the Supreme Court has been very clear that religious groups have a right to pick their own religious leaders. But what about employees of religious nonprofit such as Christian colleges and schools, or as we said, children’s homes? That is a crucial issue of religious liberty. If a Christian ministry cannot choose its own leaders and its own employees on the basis of its own religious convictions, then religious liberty has not only been severely compromised, it is effectively nullified. Michelle Boorstein, offers a specific case for our consideration. She writes about Jeffrey Higgins saying that he had been,

“…a part-time cantor and choir member for a year and a half at Mother Seton Catholic Church in Germantown, Md. when he says the Rev. Lee Fangmeyer called him in after the 9 a.m. Mass on Nov. 8 to say ‘it had been discovered,’ that Higgins was married to another man. ‘He said I was an asset to the program and everyone loves my voice but would I resign.’ When Higgins said no, he was fired.”

Boorstein then tells us that Higgins had,

“…gone to Catholic schools and worked in parishes his whole life, said he is exploring legal options but experts and advocates agree that the courts – including the Supreme Court – have ruled consistently that faith-based groups can discriminate in hiring when it comes to employees who are part of teaching or leading the faith. In the Archdiocese of Washington’s statement on Higgins’ firing, they refer to him as a ‘music minister.’”

Now we interject at this point to say that Michelle Boorstein appears to be offering an analysis that says if one is preaching or actively engaged in leading worship, if one has an official religious teaching capacity, then the Supreme Court is likely to find that the religious group has the right to choose their own leaders on their own criteria. Then come these words,

“But for some faith-based groups anyone not in alignment with the church’s ministry poses a problem.”

And that gets to the issue of the main concern of her article. But what about an employee who is not leading in worship?

Part II

---

Court ruling portends restrictions on religious organizations hiring according to beliefs

Keep Michelle Boorstein’s article in mind when we shift now to the Boston Globe and an article by Laura Crimaldi. She wrote,

“In a decision being called the first of its kind nationally, a state judge has ruled that an all-girls Catholic school in Milton discriminated against a gay man when it rescinded a job offer after learning he was in a same-sex marriage.”

Crimaldi writes,

“Matthew Barrett accepted a position as food services director at Fontbonne Academy in 2013, but the school withdrew the offer days later after Barrett listed his husband as an emergency contact on an employee form, according to a 21-page court ruling issued Wednesday.

Barrett’s lawyer, Ben Klein of Gay & Lesbian Advocates & Defenders, said the decision marks the first time a judge has rejected a religious organization’s assertion that it had a constitutional right not to hire employees because they were spouses in same-sex marriages.”

The account in the Boston Globe promises that this will be an issue of ongoing controversy and litigation, but the important thing for us to note is that this state judge in Massachusetts just before the end of 2015 ruled that someone who was a food-service employee, even in an administrative role within a Catholic school, did not have to adhere to Catholic doctrine or to Catholic moral expectations. The archdiocese is pushing back saying that it would be a compromise of its liberties and will be incongruous with its teaching if it were required to have someone living openly in a same-sex marriage as an administrator in one of its schools, even in a food-service capacity. The state court judge here clearly ruled that erotic liberty, or sexual liberty, trumps religious liberty when it comes to this Catholic school in Milton, Massachusetts.

The Boston Globe put this as a headline story precisely because it is believed that this is the first time that a state judge has ruled exactly in this manner, and the significance of it is what explains the headline. And it is, from a Christian perspective, an ominous headline indeed because even as most Christian organizations—Christian colleges and schools and other forms of ministry—can distinguish between those who have an overt teaching responsibility and others who are employees, the reality is that the entire community made up of those who are in the school or the organization are expected to be Christians who adhere to Christian morality. This state court judge says that the Roman Catholic Church has no right to expect a food-service administrator in a Catholic school to adhere to Catholic doctrine or to Catholic moral teaching.

Here we see the kind of shot over the bow that we’ve been expecting for some time.

Part III

---

Federal court's appropriation of Title IX signals legal revolution larger than SSM ruling

But from this point we need to shift from a state court judge in Massachusetts to a federal judge in the state of California. This decision by a federal judge in California cuts even closer to the bone when it comes to the issue of religious liberty. As Michael Schramm reported for USA Today,

“In what could be the first step toward a radical change in the Title IX law that prohibits discrimination on the basis of sex in federally funded education programs, a federal judge has ruled that a sexual orientation discrimination case brought against Pepperdine University may move forward in court.”

In this particular case,

“Two former women’s basketball players assert that their coach and other staff members [—that’s at Pepperdine University—] ‘harassed and discriminated against Plaintiffs in an effort to force Plaintiffs to quit the team’ after discovering they were lesbians and in a relationship.”

The stunning dimension of this judge’s decision—and this is United States District Court Judge Dean Pregerson—is that he,

“…ruled that sexual-orientation discrimination is the same as sex discrimination.”

Title IX is the federal legislation that states that colleges and universities receiving federal student aid may not discriminate on the basis of sex or gender. This particular judge has ruled that sexual orientation discrimination is the very same thing as sex discrimination. If this federal judge’s decision stands, it could effectively constitute an even larger moral and legal revolution than the legalization of same-sex marriage. In his argument, the judge argued,

“If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Plaintiffs have stated a straightforward claim of sex discrimination under Title IX.”

Embedded in that stunning sentence is the assertion made by this federal judge that sex discrimination and sexual orientation discrimination are one and the same thing. If this judge’s decision stands, it will constitute a sweeping revolution, because it would mean that any institution receiving Title IX funding would then have to cease discriminating—according to federal law—on the basis of sexual orientation or of gender identity, not just on the basis of gender and sex. The college at the center of this particular lawsuit, Pepperdine University, is a university historically associated with the Churches of Christ, and a university that states in its moral expectations that sex and marriage are to be reserved to the union of a man and a woman. Marriage in this case can only be, according to Pepperdine, the union of a man and a woman. It would be virtually impossible to exaggerate just how dangerous a judicial decision like this really is when it comes to Christian institutions and religious liberty. This would deny the ability of Christian universities and colleges receiving Title IX funding to continue to live by their own Christian convictions when it comes to doctrine and morality.

Part IV

---

Christian schools seek Title IX exemptions, prove importance of confessional accountability

Keep this in mind we shift to the New York Times where Liam Stack wrote of religious colleges that have obtained waivers to the law that protects transgender students that is embedded in the headline Title IX. Stack wrote,

“More than two dozen religiously affiliated colleges and universities across the United States have received exemptions from the federal civil rights protections provided under Title IX since 2014, documents show, waivers that activists said allow them to discriminate against students and employees on the basis of categories like sexual orientation and gender identity.”

Here you have the most influential newspaper in the country pointing to the obvious—it’s simply a matter of fact. Not only more than two dozen, but something between 40 and 60 Christian colleges and universities have received an official waiver from the Department of Education allowing them to discriminate on the basis of their Christian conviction when it comes to morality for students, faculty, and others. As Stack wrote in his article for the New York Times,

“The exemptions are in some cases wide-reaching and exempt schools from abiding by provisions of the law that they feel are inconsistent with their religious beliefs on a range of topics, including gender identity, sexual orientation, marital status and whether a person has had an abortion.”

Now what we need to understand immediately is that the focus on Title IX legislation is going to be inevitable. What we also need to note is that when Congress adopted Title IX, it specifically exempted from its provisions religious institutions whose convictions would be in conflict with the kinds of issues addressed by the legislation itself. To his credit, Stack gets right to that point when he writes,

“The federal civil rights protections under Title IX of the Education Amendments of 1972 prohibit discrimination on the basis of sex in education or other activities, like school sports, that receive federal funding. However, schools ‘controlled by a religious organization’ have always been permitted to apply for exemptions from parts of the law whose application ‘would not be consistent with the religious tenets’ of their institution.”

Now Stack points out that these kinds of requests for exemptions were, until recently, relatively rare. But the obvious reason for that is that they were not considered to be necessary. The advent of same-sex marriage, and in particular the Supreme Court’s decision in 2015 legalizing same-sex marriage, has underscored for many Christian colleges and universities the fact that they must apply for these exemptions in keeping with what Congress explicitly stated in the law. But what’s really interesting is the pushback. Congress would not have adopted the Title IX legislation in 1972 if Congress had not put in those specific exemptions for Christian and other religious institutions. But the New York Times article, and many others that have appeared in recent weeks, point to the fact that there’s a growing LGBT outrage against institutions that have applied for the very exemptions that Congress intended from the first place.

Other major media reports tell us the LGBT organizations have now undertaken a crusade to, for want of a better term, “out” Christian colleges and universities that have requested and received these exemptions. A newspaper in Minnesota known as The Column released not only a listing of these Christian colleges and universities, but also put on its webpage, as is allowable by the freedom of information act, the very correspondence between the colleges and the Department of Education available now for anyone who wishes to see. For example, a letter to the Department of Education by William L. Armstrong, the President of Colorado Christian University—we should note, also a former United States Senator—that letter explicitly states Colorado Christian University’s Christian identity and it also stipulates these in terms of the college’s strategic objectives. Those objectives include,

“…honoring Christ and sharing his love on campus and around the world. Teaching students to trust the Bible, live holy lives and be evangelists. Giving students significant opportunities to serve the Lord. Impacting culture in support of traditional family values, sanctity of human life, compassion for the poor.” And it also mentions, “A biblical view of human nature.”

In the statement it also cites a decision by Board of Trustees adopting,

“…a policy on homosexuality, transvestitism and transgenderism.”

As that statement says in part,

“Colorado Christian University adheres to the biblical admonitions against both transvestitism and transvestite behavior, as set forth in Deuteronomy 22:5, and transgenderism and transgender behavior, as set forth in Genesis 1:27.”

Because of its beliefs, the University says in its handbook,

“The University will not allow a student of a particular gender to dress and act differently than the biological one that God created them to be.”

The statement, of course, is much longer than that, but the point is that here you have a very clear statement of a position undertaken by a Christian University, specifically citing its Christian convictions and even documenting those convictions with Scripture. This is in an application, we should note, to the United States government for an exemption from Title IX. That letter by the way, is dated October 13, 2014. It should tell us a very great deal—and I think this would come as a significant shock to many American Christians—that a Christian college or university would have to write to the United States Department of Education asking for an exemption in order to be consistent with its own Christian ideals, convictions, and commitments.

But that’s not the only letter. There are several others found in the documents released by The Column. Another one relates to the Union University in Jackson, Tennessee, and in this case that university, through its President, Dub Oliver, makes a very explicit reference to the Title IX exemption for religiously controlled institutions. And as Dr. Oliver makes very clear in his letter to the U.S. Department of Education, it is the Tennessee Baptist Convention, as part of its alignment with the Southern Baptist Convention, that controls effectively Union University—specifically, we should note, when it comes to accountability for doctrine and morality, for its biblical worldview. We should note the President Oliver cites the Baptist Faith and Message, that is the official confession of faith of the Southern Baptist Convention, a statement of faith that was revised in the year 2000 to include a very specific reference to the fact that gender is a part of the goodness of creation, a confession that goes in more broad terms to the entirety of what it means to be human, what it means to be sexual beings, what it means to be married, and what it means to show the glory of God in obedience to all that God has revealed to us.

This issue of confessional identity and confessional accountability takes us right back where we were yesterday in discussing the recent controversy over Wheaton College and a professor that claimed that Muslims and Christians worship the same God. Once again, the issue is confessional identity and accountability. And the bottom line is this: a Christian organization, a Christian congregation or denomination, a college or university that is not bound to a specific confession of faith as a matter of its ongoing accountability, is an organization, Christian college or university—a denomination or a church—that is certain to lose those Christian commitments, to compromise them, to forfeit them, and furthermore—as these letters make very clear—to have no basis in which to make clear that those are the very constitutional beliefs of the Christian ministry. And that gets to something that’s even more revealing in this correspondence.

What’s most interesting is not what is written from the presidents of these colleges and universities to the Department of Education, but what is written back. For example, the letter back to Union University’s President is written by Catherine E. Lhamon, an assistant secretary for civil rights of the U.S. Department of Education. She writes that,

“The University [that is Union] is exempt from these provisions to the extent that they prohibit discrimination on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion and compliance would conflict with the controlling organizations religious tenets.”

So good, so far. But what’s really, really important is what follows in the very last full paragraph of this letter from an assistant secretary in the U.S. Department of Education. Let all Christians hear it very clearly. She writes,

“Please note that this letter should not be construed to grant exemption from the requirements of Title IX and the regulation other than stated above. In the event the Office of Civil Rights receives a complaint against your institution, we are obligated to determine initially whether the allegations fall within the exemption here granted. Also, in the unlikely event that a complainant alleges that the practices followed by the institution are not based on the religious tenets of the controlling organization, the Office of Civil Rights is obligated to contact the controlling organization to verify these tenets. If the organization provides an interpretation of tenets that has a different practical impact than that described by the institution, or if the organization denies that it controls the institution, this exemption will be rescinded.”

Consider that a blockbuster. What we have in these documents now released is evidence of the fact that the U.S. Department of Education, in its own strange secular way, actually understands what many equivocating and compromising Christian colleges and universities apparently have not. And that is that this only works, in terms of respect for conviction, if indeed it is a confessional conviction; and it also points to this—this letter by an assistant secretary for civil rights of the U.S. Department of Education says that if an institution says that it requests this exemption, because it is accountable to a religious organization or denomination—to a church—then it had better be so. Also, in that paragraph I just read from this assistant secretary is language saying that if the organization, the denomination, or church says that this is not really a required conviction than the exemption falls away.

This really is a blockbuster, because here we have the U.S. Department of Education saying that if one intends to be a Christian organization bound to Christian truth, and thus to gain an exemption from Title IX, then the institution must be genuinely Christian. That is a fundamental realization that, it appears, many Christian colleges and universities have not absorbed or owned as their own. There is no such thing as an on-again, off-again confessional accountability. It is either a true accountability or it’s not. The U.S. Department of Education seems, in its own strange secular way, to understand that. But Christians had better understand it at a far deeper and more fundamental level. There are so many issues here of legitimate and urgent Christian concern, including the whole question of federal funding. That question will have to wait. In the meantime, all these different articles coming literally coast-to-coast tell us two big lessons we better hear quickly. The first is this, there really is an inevitable collision between LGBT rights and religious liberty. And then secondly, there really is a mandate for confessional accountability. This is where a Christian institution, a Christian college or university, will truly stand or fall.