SACRAMENTO, Calif. — Catholic and other Christian educational institutions in California face the loss of existing protections that allow them to carry out their educational mission in line with their religious principles, due to a new bill working its way through the California Legislature.
The Golden State’s bishops have opposed the bill as both a violation of the Church’s religious liberty and an attack on poor students.
State Sen. Ricardo Lara, D-Bell Gardens, the author of S.B. 1146, has argued that the bill closed a “loophole” that allows religious-based institutions of higher learning to discriminate against homosexual and transgender students, thanks to existing religious exemptions from state and federal non-discrimination statutes. The bill affects all institutions of higher learning in California accepting public funding, either directly from the state or through students.
“California has established strong protections for the LGBTQ community, and private universities should not be able to use faith as an excuse to discriminate and avoid complying with state laws,” Lara explained in an April statement to constituents about the bill, which has the backing of the LGBT lobby group Equality California.
The bill has already passed the senate and is now making its way through the assembly.
Lara’s bill states that “a religious educational institution” must comply with all the non-discrimination provisions of California’s non-discrimination statute, the Equity in Higher Education Act, which includes gender identity, gender expression and sexual orientation among its protected classes, “except with respect to prohibitions concerning religion, as specified.”
But what that exception actually means, however, is the “$64,000 question,” according to John Masteller, general counsel for Thomas Aquinas College, based in Santa Paula.
“It’s all very vague and ambiguous,” he told the Register. However, he said the bill makes “crystal clear” that, in principle, the state of California views discrimination based on religion as permissible, but never discrimination based on “gender identity.”
The Catholic college falls under the Equity Act, because it accepts state-funded student loans known as Cal Grants, which provide substantial financial assistance to low-income students. The current legal regime applies the religious exemption in California automatically, Masteller explained, whereas under Title IX, the federal non-discrimination statute, educational institutions have to apply for a religious exemption.
Masteller said that Thomas Aquinas College tries to govern itself according to the Church’s proclaimed teachings. All students, faculty and staff — no matter how they identify themselves — are expected to abide by policies rooted in those teachings, such as sexual morality. Violating them or trying to undermine them can lead to expulsion or termination of employment.
However, Lara’s bill would make it impossible for the college to comply, because if one of their biologically male students decided that he felt like a woman and he wanted to move into a women’s dorm, they would have to tell him “No,” making them guilty of discrimination.
“Under this regime, we would have to accommodate him or be subject to a civil action,” he said.
The Association of Independent Colleges and Universities has also informed the assembly, explaining that 34 of their members would be affected by the bill. And 31 of these colleges and universities both fall under the religious exemption and participate in the Cal Grant program.
The Protestant-based Biola University in Los Angeles is also among the educational institutions calling for amendments to the bill that would protect religious liberties.
Biola spokeswoman Jenna Loumagne told the Register that the bill, in its current form, appears to allow Biola to require prayer, chapel attendance, equally-applied codes of conduct and preference for co-religionists. Biola cannot deny admission or expel a student “for being LBGT.”
But the evangelical university also cannot deny housing to a student based on students’ gender identity, gender expression or sexual orientation, interfering with the university’s ability to make housing decisions consistent with its religious beliefs.
“If you have married-student housing, you would have to house a same-sex-married student couple,” Loumagne told the Register in an email.
Might Even Target Seminaries
The vagueness of Lara’s bill was also not lost on the assembly’s Committee on Higher Education staff. They noted in a June 21 analysis that language leaves the religious exception not only “undefined,” but also might create “allowable discrimination against a California protected class if the religious institutions determines [sic] that discrimination is consistent with the tenets of the religion.”
Whereas an earlier version of the state senator’s bill made clear that seminaries and divinity schools, which are Title IX-exempt institutions, were excluded from the scope of the legislation, the latest version now leaves that in doubt. The Committee on Higher Education, however, voted 8-2 on June 21 to approve the bill’s language and send it to the judiciary committee.
“It potentially affects everyone,” Ned Djolesi, executive director of the California Catholic Conference, told the Register.
The California Catholic Conference has called for opposition to the bill until it is amended in a way that respects the freedom of educational institutions to govern themselves by their religious principles, without the threat of a lawsuit. Effectively, the bill allows them to conduct an admissions test based on religion, Djolesi said. But it leaves an open question whether those colleges and universities can put their faith beliefs into action on campus.
“That’s not what these faith-based colleges and universities are about,” he said. “It needs to cover more than the ability to discriminate based on religion.”
He pointed out that the state bishops’ conference does not oppose the bill’s disclosure requirements. The bill mandates religious-based universities and colleges that have a religious exemption under the Equity Act or the federal government’s Title IX educational non-discrimination statute to disclose “the basis for claiming the exemption, and the scope of the allowable activities provided by the exemption,” in written materials and programming.
Djolesi explained that it was reasonable that students and employees should have the information to make a full decision.
Loss of Cal Grants?
However, the bishops’ conference also wanted an amendment to protect the Cal Grants of students attending these colleges that have sought an exemption.
Although an amendment to the legislation states that it should not be “construed to affect … the current operation of the Cal Grant program,” Dolejsi said, Catholic officials are unconvinced the bill would not use the loss of student loans “as a club” against faith-based universities.
“The language surrounding that provision is substantially obtuse,” Djolesi said.
According to Masteller, that provision in the bill simply makes clear that if a college or university gets sued for non-compliance, it will not lose Cal Grants. However, the problem for Thomas Aquinas College and other faith-based institutions is that the Cal Grant process requires the institution accepting Cal Grant money to certify in the participation agreement with the state that it is in full compliance with all the non-discrimination statutes.
“It does affect Cal Grants, because we can’t certify that, and neither can those other [religious-based] institutions certify that,” he said, explaining the Catholic college cannot be compliant with non-discrimination based on gender identity or expression and maintain single-sex dorms at the same time.
If the bill in its current form passes the assembly, and Gov. Jerry Brown signs it into law, it may force Thomas Aquinas College and other religious-based colleges and universities to jettison Cal Grants to preserve their educational mission.
Masteller said that would be a significant blow to students from low-income families, who receive an average of $9,000 that is applied directly to their tuition. It may even effectively deny them an opportunity to get the education they want.
Confronting the Consequences
Masteller did not see how the state government could expect to avoid a lawsuit if the bill is not amended, calling it “an existential threat to religious liberty.”
“What they don’t understand is the reason that exception was there in the first place is because there still is a thing called the First Amendment to the Constitution, which basically says the federal government and no state may pass any law that inhibits the free exercise of religion,” he added.
The assembly goes into recess for the month of July and does not reconvene until Aug. 1. Opponents of the bill believe they have approximately one month to get S.B. 1146 changed in the assembly or lobby Gov. Jerry Brown to veto the bill if it passes without needed amendments.
The governor’s office informed the Register that the bill was pending legislation, and on that basis, it declined to provide any indication of how Brown might ultimately use his pen.
Peter Jesserer Smith is a Register staff reporter.