WASHINGTON — The Council of the District of Columbia has unanimously passed legislation revoking legal exemptions that protected Catholic schools and universities in the District of Columbia from having to provide recognition, funds and space to student groups engaged in political homosexual advocacy.
The D.C. Council voted 13-0 on Dec. 1 to approve Councilmember Tommy Wells’ amendment to the D.C. Human Rights Act, which repeals a 1989 federal exemption that allowed religiously affiliated organizations to govern themselves along their religious tenets in matters of sexual orientation.
Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law, characterized the move as a “triumph of ideology.”
“What they are doing is they are basically saying, ‘See, everything has changed now; we’re in charge. We’re going to repeal it, and we’re going to enforce it against all religious institutions,” he said.
But Wells argues the issue at stake is equality, not protection of religious liberty.
“What we’re saying with this bill is that, under the Human Rights Act, religious educational institutions owe the same tolerance and acceptance to their students that they enjoy themselves,” Wells told the Register.
The repealed law stated that private religious educational institutions had the ultimate say over the “use of any fund, service, facility or benefit” or granting of approval or recognition to persons “organized for or engaged in, promoting, encouraging or condoning any homosexual act, lifestyle, orientation or belief.”
Known as the Armstrong Amendment, the exemption addressed a conflict that started in the late 1980s, when Georgetown University refused to recognize or provide space for GU Pride, a student homosexual-advocacy group.
Wells alleged the federal amendment was “fundamentally out of order with our values of inclusion and acceptance here in the District.”
“Repealing the Armstrong Amendment is important to everyone in the District of Columbia because we decided long ago that, in our community, discrimination on the basis of sexual orientation is unacceptable,” he added.
The D.C. Council’s law was strongly opposed by Catholic and other Christian entities.
Michael Scott, director of the D.C. Catholic Conference, stated in written testimony that government “may not force religious schools into advancing a viewpoint or policy that conflicts with their sincerely held beliefs.”
He noted that CUA, other major universities and smaller sectarian schools, including 20 Catholic elementary and secondary schools, would be affected by the legislation.
“Religiously affiliated schools are not only obligated by their religion, but also permitted by the Constitution, to freely teach and act according to their faith,” he said.
Lawrence Morris, general counsel for CUA, also testified that the university has to have the freedom to determine “which organizations to permit on campus” as part of its fidelity to Catholic teaching.
“We make a statement about ourselves every time that we extend recognition to a student group, so we only sponsor organizations whose overall principles are consistent with the Church’s teaching.”
He noted that CUA’s "Community Pledge" asks students, faculty and staff to “reject and witness against” the mistreatment of others, including when it involves sexual orientation.
Patrick Reilly, president of the Cardinal Newman Society, told the Register that while the Obama administration is offering a religious exemption (albeit an unsatisfactory one) for the HHS contraception mandate, the D.C. Council has run in the opposite direction.
“This was an action to take away the exemption. This was an action not dealing with the question of whether institutions should be accommodated to preserve religious freedom; this was a deliberate effort to take away the religious freedom that already existed for religious educators,” he said. “That is what I find particularly troubling.”
Wells, however, disagreed that the new law would infringe on religious liberties.
“The Human Rights Act actually takes explicit steps to protect religious liberties in different places (e.g., by requiring employers to accommodate religious observations of employees), but religious freedom does not — and should not — provide a legal shield for our schools to engage in practices that constitute rejection of members of the community because of their sexual orientation.”
The councilmember was not certain whether religious seminaries would fall under the legislation.
“That depends on whether they meet the definition of a ‘religious institution’ in [the D.C. Code],” he said.
Headed for the Courts?
Reilly said the mayor still has not signed the bill, and his society is still hopeful he will veto it. However, the bill was passed unanimously, and it would take eight councilmembers to effect an override.
Under D.C.’s home-rule framework, the law will have to pass a 30-day congressional review. If any member of Congress has an objection, both the House and Senate would have to pass a resolution, signed by the president, overturning the D.C. law.
Destro, however, believes that the law is likely to end up fought in the courts.
“[D.C. Councilmembers] haven’t understood the significance of Hobby Lobby, and they don’t really buy it,” he said, referring to the recent U.S. Supreme Court decision that found for-profit employers of privately held companies are not obliged to provide goods or services that violate their sincerely held religious beliefs.
According to Destro, the uptick of religious liberty conflicts is the result of legislators and executives who are deciding what civil rights now means.
“It’s this whole idea that gender and sexuality are socially constructed, and that it is the duty of the government to make the way clear and to validate [behaviors],” he said.
Let Dioceses Decide
But Reilly noted that the courts “are increasing asserting their competency to decide what is appropriate for a Catholic institution or not.”
In Indiana, for example, a federal appeals court ruled Dec. 1 that the Diocese of Fort Wayne-South Bend would have to face a jury trial for firing a school teacher who became pregnant using in vitro fertilization (IVF) procedures, which the Church believes is an act that violates the natural law. A trial date is set for Dec. 16.
Reilly said that, among Catholics, there is a debate about what moral standards should be required of school employees and what sort of steps should be taken when violations occur.
“If there is to be any religious freedom, Catholic schools have to have the right, under their ordinary Catholic bishop, to make that determination,” he said.
“It’s for the dioceses and not the courts to decide.”
Peter Jesserer Smith is the Register’s Washington correspondent.