Fairness for All: Using Civil Rights Law to Protect Distinctively Christian Higher Education

In a recent overview of the legal and cultural challenges facing Christian higher education, Sarah Eekhoff Zylstra reviewed the many past, current, and looming difficulties stemming from the conflict commonly termed “religious freedom versus LGBT rights.” She noted the absence of any assured or broadly acknowledged way forward. The strategy of refusing federal and state government funding, for instance, does free an institution from a range of government demands to adopt new views and practices concerning marriage and human sexuality. Yet, in the future those requirements may well be enforced despite the absence of government money, through the accreditation process, qualifications for retaining tax-exempt status, employment law, nondiscrimination practices an institution must exhibit if its students are to be eligible for some professional license, and in many other ways.

In short, the root issue is not government funding; rather, it is about whether institutions in our society will be able to exist and flourish that do not conform to the cultural consensus about marriage and sexuality. If so, then the clash can best be framed as an issue of pluralism: now that our society harbors these opposed views about marriage and sexuality, will—should—the freedom of religion protect the dissenting view?

Many are sure that the minority view is bigoted, discriminatory, and ought not be allowed to be practiced. Yet, the historic views are, in themselves, positive convictions not aimed against anyone else. Justice Kennedy, writing the majority opinion making same-sex marriage legal throughout the US, nonetheless stated that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Kennedy continued, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered” (Obergefell v. Hodges, 2015, emphasis added). If those convictions are not per se evil and illegal, then the issue instead is how people and organizations with such sharply different views can live together without constant conflict.

That framing of the conflict puts us in the realm of religious freedom and pluralism, rather than discrimination. Our government acknowledges that citizens and organizations differ deeply from each other in our convictions about ultimate reality, worship, and the gods. Rather than suppressing some or most of the views, our Constitution and laws provide security in the law for every religious community, being watchful to regulate specific clashes. Citizens can choose: PCA or PC (USA), Episcopalian or North American Anglican, Christian or Jew, Muslim or Catholic. This applies not just for worship and family life, but also out into society: go to Wheaton or Whitworth, Yeshiva or Zaytuna, Notre Dame or Liberty, Duke (originally Methodist) or North Carolina State (always secular).

Such law-structured pluralism is the idea of Fairness for All, the initiative to write simultaneously into federal law new protections for LGBT people and corresponding strong protections for religious institutions, religious exercise, and free speech. The changes would span the broad categories of civil rights protection: employment, housing, public accommodations, consumer credit, government-funded services, jury duty. Fairness for All is a very different proposal than the Equality Act passed last May by the House of Representatives—the Equality Act would add all of those LGBT protections but actually take away existing religious freedom protections.

The Fairness for All proposal entails writing the prohibition of sexual-orientation and gender-identity discrimination throughout civil rights law—and in the same places specifying and strengthening protections for religious freedom. This is the—often forgotten—pattern in civil rights law: it specifies both when and where certain kinds of differential treatment is illegal and when and where it is legal. For instance, religious discrimination in employment is banned, except that religious organizations can be religiously selective in hiring any and all employees. Civil rights law both prohibits and protects. With Fairness for All, federal civil rights law would newly protect LGBT people and—in the same historic, classic, fundamental civil rights law—would specifically protect religious colleges, adoption agencies, employees, and more.

My organization—the Institutional Religious Freedom Alliance, a division of the Center for Public Justice—and the CCCU have been working toward this goal for more than three years, drawing in other religious organizations, religious freedom advocates, and LGBT rights advocates to fully explore how to achieve simultaneous new protections. Of course, this legislative effort cannot be the only action; CCCU promotes other vital legislative measures (protective language in the reauthorization of the Higher Education Act), regulatory reform, and litigation.

However, change in the federal civil rights law is itself vital, as we have come to believe. What we all need are not just restatements of broad principles: religious freedom, equality without discrimination. We need a clear specification of how these broad principles can be achieved simultaneously, considering how they intersect across a broad range of circumstances: is this a housing issue, a dorm, or an emergency shelter? Is it a religious college or a secular one? Is federal funding involved or is it an accreditation issue?

In the Fairness for All discussions, a very extensive series of provisions—amendments to current civil rights law—have been developed in a process that aimed not to equalize burdens for each side (“you made us swallow that limit on our freedom so now you have to accept this provision you hate”) but rather to find mutually positive solutions wherever possible. For example, Wal-Mart cannot fire the transgender teen, but the orthodox Jewish charity is not required to hire her; gay couples cannot be blocked from adopting, and faith-based agencies committed to traditional marriage cannot be shuttered; secular higher education institutions may not discriminate against same-sex couples, yet the curriculum, community rules, employment practices, and admissions standards of religious higher education are protected.

Nonetheless, these are difficult issues. Throughout the process we consulted broadly on the religious side to make sure that practices and institutions will be strongly protected, whether or not a particular religious community favors the Fairness for All initiative. We consulted broadly on the LGBT side, being particularly attentive to advocates who work closely with vulnerable gay and transgender people to ensure effective protections, even though the initiative is strongly opposed by some prominent LGBT-rights organizations.

The detailed legislative language is ready to be introduced into Congress. Will it gain sufficient favor in our polarized society to be considered fairly by legislators? Will a President sign it into law? Will the courts consider the lines to be fairly drawn? Will the broad public, if not those on the edges, regard the LGBT and religious protections in fact to be fair to all—not anyone’s maximal preferences, but a positive way for people with deep differences to live side by side instead of always running to the courts, hoping for a unilateral victory?

Some Christians are deeply concerned that putting protections into federal law for LGBT people means codifying a false ontology of sexuality and human identity. When there are deep divisions, some departure from what this or that part of the society is sure is the truth is unavoidable. The issue is how to protect people in their (varied) journeys to truth. To protect the freedom of everyone to arrive by conviction to true worship, our laws specifically do not define or require true worship—yet, these agnostic legal measures do not undermine the Holy God nor our commitment to worship Him in truth. Fairness for All, far from blessing every claim, is careful to specify which gender identity claims have to be accepted by others and where, and which ones are not protected. It also specifies when, and when not, a person’s sexual orientation and sexual conduct are protected by law.

Will Fairness for All teach our society that biblical sexual ethics is optional and that anything goes? In fact, those opinions developed and began to flourish during the decades and centuries that the law sought to enforce Judeo-Christian sexual morality. The law did not effectually teach biblical obedience.

Our hope with Fairness for All is that the law will show us how we can live together as good neighbors now that we have come to disagree so deeply about these vital matters. Good neighbors should not be silent about their contrasting convictions. But, if the law fairly protects everyone, then we can discuss and argue rather than litigate. We will be able to show through the witness of our lives and our institutions the ways of life we are confident are right, best, and God-honoring.