By: Emma Bechara
Should academic institutions that are controlled by religious organizations be subject to state anti-discrimination laws? What if the anti-discrimination laws are in direct conflict with the fundamental tenets of a religious organization? These are two of the key questions at the center of the recently-passed Senate Bill 1146 (“SB 1146”), signed into law in California on September 30, 2016 by Governor Jerry Brown. Unsurprisingly, its enactment has been met with impassioned debate from both sides of the fence; notably on the one side by Equality California and on the other by religiously-affiliated private postsecondary institutions. For such significant legislation, little has been reported or discussed on its enactment. Against this backdrop, this post provides both a brief overview of the bill and its federal equivalent, and some food for thought about whether the bill passes muster under the United States Constitution.
What is SB 1146?
Senator Ricardo Lara, the bill’s author, argues that legislation in the form of SB 1146 is necessary because, as it stands, universities are using federally authorized exemptions from Title IX of the Education Amendments of 1972 (“Title IX”) as a means to discriminate against students, particularly against those who are transgender and homosexual. In the report presented to the California Senate Committee on Education on April 6 2016, the staff comments note that Senator Ricardo is concerned that “there is no requirement that these institutions disclose their exemption status, and students and staff across the country report learning of the exemption only after being expelled from school or fired from their jobs.”
At its simplest, SB 1146 requires any postsecondary educational institutions in California that claims a religious under Title IX exemption or the Equity in Higher Education Act (“EHEA”) on the grounds that they are controlled by a religious organization to make certain disclosures regarding their exemptions. The bill requires that these institutions disclose the basis for claiming or having the exemption, and the scope of allowable activities covered by the exemption, to current and prospective students, faculty and employees. These institutions are required to disclose the information by, inter alia:
- Displaying the disclosure on the institution’s campus or school site in a “prominent location” (defined as a location “in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted”);
- Including the disclosure in written materials to prospective students and staff; and
- Including the disclosure at orientation and in any publication by the institution.
In effect, therefore, SB 1146 requires those religiously-affiliated institutions claiming an exemption under Title IX, to publicly and repeatedly state, through numerous avenues, that they do not support students with LGBTQ lifestyles. Truth in advertising, or just public shaming? The jury is still out.
Naturally, the dialogue between relevant stakeholders in the debate is heated. By way of example, the Pacific Justice Institute has, on the one hand, labelled SB 1146 an “attack on Christian higher education.” On the other hand, Senator Lara himself stated in a press release after the bill was passed that no university “should have a license to discriminate, especially those receiving state funds” and that SB 1146 “represents a critical first step in the ongoing efforts to protect students from discrimination for living their truths or loving openly.” SB 1146’s purpose is clear: to limit the impact of sexuality and gender identification discrimination. But, in seeking to protect against discrimination, does SB 1146 violate the constitutional right to freedom of religion?
SB 1146 and the Constitution
- Legal background
At the federal level in the United States there exists a “loophole” in anti-discrimination law that allows a religiously affiliated institution to engage in sex and gender discrimination if the particular conduct goes against its religious tenets. As previously noted, there are similar legislative enactments at state levels.
- Title IX — Title IX prohibits gender discrimination by educational programs or activities that receive federal funding. It provides that no student may be, on the basis of sex, excluded from participation in, denied the benefits of or subject to discrimination under any program that receives federal funding. However, Title IX lists several “exceptions” to this prohibition, including sororities and fraternities, scouts, military institutions, schools that are “traditionally and continually” single-sex and any educational institution which is “controlled by a religious organization” if the application of Title IX “would not be consistent with the religious tenets of such organization.” The relevant questions here are (1) does Title IX prohibit discrimination that is based on LGBTQ factors and, (2) if so, does the exemption relating to religious tenets extend to such discrimination?
- EHEA — Similarly, the California’s EHEA proscribes discrimination on the basis of, inter alia, gender and sexual orientation, by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive financial aid from the state. However, much like Title IX, the EHEA provides an exemption for educational institutions that are controlled by religious organizations if the application of the EHEA would be inconsistent with the organization’s religious tenets. Relevantly, the intention of the EHEA is to be interpreted as consistent with other federal and state legislation, including Title IX.
These laws are directed at religiously-connected schools but relate to such schools that receive state or federal assistance – that is, most schools. Since funding is heavily relied on by such institutions, the resulting position in which many of these institutions are left is that they either fall in line with the state or receive no funding. Should this be the case, insofar as it means that these institutions may be unable to freely practice their religious beliefs? It is arguable that laws such as SB 1146 are “strong-arm” legislation which violate the Free Exercise Clause of the First Amendment and are prima facie unconstitutional.
- Is SB 1146 Constitutional?
In its early stages, SB 1146 looked pretty damning for the free exercise of religion for academic institutions. For example, in the initial draft Senator Lara sought to relegate Title IX exemptions to apply only to educational programs or activities that prepare students to become ministers of the religion, to enter upon some other vocation of the religion, or to teach theological subjects pertaining to the religion – that is, expressly not to institutions claiming to be “controlled” by a religious organization, such as church-affiliated postsecondary institutions. In its current form, however, the question of whether it violates the First Amendment seems murkier.
Drawing from a 2015 report released by the Human Rights Campaign titled “Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk” (“HRC Report”), Senator Lara noted that there has previously been “no requirement that these institutions disclose their exemption status, and students and staff across the country report learning of the exemption only after being expelled from school or fired from their jobs.” The HRC Report found that the rate of schools seeking religious exemption under Title IX increased from 1 school in 2013, to more than 43 schools in 2015. Additionally, it found that 33 schools were given an exemption from the law relating to gender identity and 23 schools were given an exemption relation to sexual orientation. The HRC Report noted that its concern is that if the trend toward exemptions continues “many LGBT students may find themselves enrolled at schools that are granted the legal right to discriminate against them partway through their degree program. Students should have the opportunity to make determinations about school attendance based on full information regarding a university’s ability to legally discriminate against the student.” Enter SB 1146.
The findings from the HRC Report seem to have gotten the ball rolling on the drafting of SB 1146 and they are undoubtedly disturbing; without question, discrimination of any kind is of concern. But, with respect to SB 1146 specifically, if it serves a “compelling government interest” to protect LGBTQ students against discrimination by private “religious” colleges then shouldn’t the same disclosure requirements required of religiously-connected institutions also be required of all groups that are permitted exemptions under Title IX? To illustrate the point more clearly: if a religiously-controlled institution must publicly disclose its preference for heterosexuality or non-transgender students, then why are sororities, fraternities and the United States military not also bound by the same disclosure obligations?
As a form of government action, the disclosure obligations must be adjudged against the current legal climate in order to determine their constitutionality. As a general rule, any government action that substantially burdens religious practice must have a “compelling government interest” (Wisconsin v Yoder, 406 U.S. 205 (1971)) in order to be constitutional. However, the Supreme Court has also found that “neutral laws of general applicability” that burden religious belief of practice may nonetheless be constitutional, regardless of compelling state interest. In Church of the Lukumi Babalu Aye Inc v City of Hialeah (“Lukumi”), the Church of Lukumi practiced a religion that used animal sacrifice as a form of worship. After a public announcement that their church would be opening up a house of worship in Hialeah, Florida, the city council adopted several ordinances that prohibited, among other things, the possession of animals for sacrifice. The Supreme Court found that if the purpose of a law is to restrict or infringe upon particular practices because of their religious motivations, then the law is not neutral and it is therefore invalid unless it is justified by a compelling government interest and is narrowly tailored to advance that interest.
Ultimately, the Supreme Court found that the ordinances violated the Free Exercise clause of the US Constitution, as the ordinances were neither neutral nor generally applicable, and additionally could not be justified by a compelling government interest that was narrowly tailored to that specific interest. The crucial failure of the ordinances was found to be that they applied exclusively to the church and singled out the activities of a religious faith; that is, only conduct in connection with a religious organization was burdened. The ordinances consequently failed strict scrutiny. Therefore, in applying Lukumi, does not the lack of regulation of the fraternities and sororities that are also exempt under Title IX show an intention to specifically burden organizations with religious objections and not others? All these questions deserve more attention than they have received to date.
In addressing the LGBT issues attached to SB 1146, Dr. John MacArthur, President of The Master’s College noted that “The Master’s College is clear about its biblical position in regard to LGBT issues. We love and care for all people, but we are obligated by our articles of incorporation and our bylaws to teach and practice what we believe in every aspect of campus operation.”
An additional constitutional question to consider is whether by being forced to disclose certain information, religiously-affiliated colleges are therefore “compelled” to speak under SB 1146? The protection of speech in the United States is paramount: Congress “shall make no law . . . abridging the freedom of speech. . . .” But the right not to speak is equally important. For example, in West Virginia State Board of Education v Barnette, 319 U.S. 624 (1943), the Supreme Court struck down a state school requirement implemented by the Board of Education that required all students to salute to the American Flag. The case involved a young student who was a Jehovah’s Witness and had been expelled for refusing to salute to the US flag, in violation of the state school requirement. His refusal was founded on the fact that as a Jehovah’s Witness his religious beliefs included a literal version of Exodus, Chapter 20, verses 4 and 5, which says: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.” Jehovah’s Witnesses consider the flag an “image” within this command and are therefore prohibited to salute it.
The Supreme Court ruled that the state requirement to salute the flag was a violation of the First Amendment as it compelled students to follow a rule in which they may not believe. Additionally, the Court found that the requirement infringed upon an individual’s right to choose their own beliefs and that, provided an individual’s actions do not present “a clear and present danger” of the kind a state is permitted to police, then the state must allow for diversity of thought and it could not mandate allegiance in the hope of encouraging patriotism. Applying these facts to SB 1146, institutions that have a viewpoint on LGBTQ lifestyles will be compelled under the legislation to air those views publicly and will be compelled to speak on their beliefs regarding the LGBTQ lifestyle in manner that is arguably very burdensome and through an undisclosed number of avenues; in this respect, the legislation is in and of itself vague.
It is impossible to know at this stage what “disclosure” even covers. Key questions that come to mind are: Does the exemption have to be disclosed to parents verbally at orientation? Is the school required to have a disclaimer on their homepage? Does the school have to specifically state that they seek the exemption based on their beliefs concerning LGBTQ lifestyles? How prominent must the disclosure be – does there need to a banner stating the school’s religious tenets and beliefs regarding the LGBTQ community? The list is potentially unlimited. And, even if institutions wanted to comply with the disclosure obligations, in its current form SB 1146 provides no guidance on how the disclosures must be implemented and how far they need to go. Is this a violation of the due process provision of the US Constitution? By way of illustration, the vagueness doctrine in the criminal context dictates that for a law to be constitutional it must describe explicitly and definitely what conduct is punishable. The same principle applies in the civil context. For example, in FCC v Fox, while the case did not expressly deal with issues relating to the First Amendment, the Supreme Court found that: “Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.” In its current form, it is questionable whether SB 1146 satisfies either prong of the Void for Vagueness Doctrine.
Finally, with respect to remedies, according to Equality California “if an individual encounters discrimination at a school claiming a Title IX exemption, they would be allowed to pursue civil action” under SB 1146. If this stands under the current legislation, and there is recourse for individuals under SB 1146, what then is the function of the exemption? Will the exemption be removed for religiously-affiliated institutions completely?
SB 1146 comes into effect in the beginning of the 2017-2018 school year and the burden that religiously-affiliated postsecondary colleges in California may bear with respect to their various disclosure obligations shouldn’t be underestimated. Questions of the law’s constitutionality should be rigorously examined.
As a final thought, the concept of caveat emptor, “let the buyer beware,” deserves some consideration in this context. When a contract is entered into, the purchaser assumes the risk that the product or service may not meet their exact needs or desires. The rule does not encompass misleading or deceptive conduct or fraud by the seller, but simply that the onus is on the purchaser to make an educated, informed and considered purchasing decision. Should the onus then be on LGBTQ students to question whether a school, particularly one with a religiously-affiliated name, has a particular viewpoint on LGBTQ lifestyles? Perhaps. And perhaps there are ways the government can be involved without implementing drastic regulations. For example, and further to this point, in a letter dated January 20, 2016 to concerned US Senators, the United States Department of Education Office for Civil Rights noted that it is currently in the process of preparing “requests and responses [for religious exemptions] for posting on our website with a basic search tool so that applicants, students, parents, and others can be better informed about which educational institutions have sought and/or received a religious exemption.” If this tool is implemented in full, what then would the purpose be for institutions to disclose the information themselves? What then is the point of SB 1146? The jury is still out.