SB1146, Are Religious Colleges Under Attack?

Biola Pressroom released this letter to Biolans and Biola supporters. According to this list there are 12 Religious Colleges and Universities which could lose Cal Grant funding if SB1146 becomes law. The original text of the bill has been recently changed to only provide the religious exemption to schools not affiliated with a denomination.

This bill would limit the religious exemption from the Equity in Higher Education Act to certain educational programs and activities of a postsecondary educational institution that is controlled by a religious organization….The bill would make the provisions of the Equity in Higher Education Act severable… This chapter shall not apply to educational programs or activities offered by an educational institution that is controlled by a religious organization to 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, if the application of this chapter would not be consistent with the religious tenets of that organization.

Between the 12 listed institutions just over 21,000 students may be directly impacted. Take Biola and Azusa Pacific for example, these two schools are easily the largest on the list of affected schools if this bill becomes law. If 68% and 74% of the students from Biola and APU respectively graduate with borrowed funds, it is reasonable to believe most of them receive funds from Cal Grant. For the sake of argument suppose only half actually get Cal Grant, but without it they would not be able to attend. Can any institution survive a decline of 34-39% of their students? Because there is no date found in the text and this amends an already active law, this is assess if the law is signed this summer the changes will go into effect this coming Fall.

Between the original text (see the red strikethrough) this appears to be a state response following the apparent lead by the Department of Education. In my blog from earlier today I pointed to a helpful article by a Harvard Law Professor on the Title IX bind where schools are forced to accommodate LGBT students while simultaneously sexually offending other students. By all accounts if this bill becomes a law, we will have a new version of Bob Jones v. United States (1983). Instead of racially motivated restrictive admission policies that cost the school federal student aid, it will be discriminatory policies against the LGBT community. Although the text of the bill at current has struck through that text, to me, this only means better lawyers have made alterations to target religious institutions progressively. If the original text remained there would have been active support from our Roman Catholic brethren. If the whole of the religious community does not come together to mobilize their supporters I very easily see this bill being like a poem from a German pastor during WWII.

First they came for the communists, and I did not speak out - because I was not a communist; Then they came for the socialists, and I did not speak out - because I was not a socialist; Then they came for the trade unionists, and I did not speak out - because I was not a trade unionist;

Then they came for the Jews, and I did not speak out - because I was not a Jew; Then they came for me - and there was no one left to speak out for me.

Allegedly the author of the bill claimed this was not to target religious institutions but, based on the amended text, who was this supposed to affect? This bill only affects religious institutions. Did Senator Lara, a Los Angeles native and member of the LGBT community, have in mind that California debt was too much and college aid was fiscally important? I think it is fair that the original text of the bill does not target religious institutions specifically but it would still greatly impact them. It is the duty of a legislator to consider the effects of all parties involved, not just their particular interest group.

When I analyzed the original text, I found it to be a clear violation of the Lemon Test, brought to you by Lemon v. Kurtzman (1971). The Lemon Test has three parts which must be acceptable in order for a law to be constitutional and nondiscriminatory towards an establishment of religion. These criteria are:

1. "the statute must have a secular legislative purpose"
2. "its principal or primary effect must be one that neither advances nor inhibits religion"
3. "the statute must not foster "an excessive government entanglement with religion.””

Based on these three criteria I am having trouble seeing any of these passing muster.

Then again if one looks to the 7th Court of Appeals Wheaton College v. Burwell (2014). This was Wheaton’s suit against Affordable Care Act (Obamacare) on the same grounds as Little Sisters of the Poor and Hobby Lobby. It should be sadly noted that in the 8-0 judgement more or less in favor of the Little Sisters of the Poor, the Court explicitly said that case was not to be used as a guide to other cases, specifically Wheaton College v. Burwell. In this case, the 7th Circuit Court of Appeals ruled against Wheaton College. The important question following Hobby Lobby’s victory, which many institutions hoped would be answered by Zubik (Little Sisters of the Poor), was if the religious exemption eligibility could be applied to nonprofit institutions. After all, if it could apply to for-profit businesses, why would it not apply to non-profit religious organizations. The primary argument against the Little Sisters of the Poor, was the claim that they were not a religious organization...Let that sink in for a minute.

If SB1146 becomes law, then all the affected institutions should file an immediate suit challenging the constitutionality of the law. In order for it to not go into immediate effect, a judge would have to declare an injunction to prevent the change until the courts processes the challenge. Depending on the sensibilities of the judge it could go one way or another. If the injunction does not occur, then there is a real possibility the schools would go bankrupt before the courts workout the challenges.

This is a state law, therefore the challenge would have to begin at the state courts. It would not be wise to look immediately to the Supreme Court as such a case would likely take at least 4 years to even be submitted to be heard by the Supreme Court. Between this case potentially being a constitutional one and the 7th Circuit Court of Appeals having ruled on this, if the 9th Circuit Court of Appeals ruled in favor of the colleges (if you believe in miracles, such a ruling by that court would definitely qualify) that would bring the probability of the Supreme Court to hear the case up to maybe 5% chance. Oh, being that we don’t know who will be the 9th Justice to replace Justice Scalia, whoever becomes President would most definitely impact this decision. Therefore, if we have a hope in democracy or more importantly that God can intervene, in addition to praying for the affected schools use this link for a form letter to send to your representative.

Update: Here is a response from a far better informed friend concerning my arguments and the claims of the initial letter.

Pardon me if I ignore all normative arguments about the wisdom of the law, the existence of God, and the relative merits of organized religion for a moment, and just talk about the law.

A few minor points: 1) while the bill would narrow the exception only to schools and programs offering training in the ministry specifically, it does not require that the school also be denominational. "Controlled by a religious organization" simply means that the charter of whatever organization controls the school be explicitly religious. That language appears in the Ed Code as it currently exists. 2) the bill has been amended to read that no school which currently receives the Cal Grant will lose Cal Grant eligibility. Therefore, schools like Biola and APU are in no immediate danger on that front.

Now the major point: The Lemon Test is irrelevant. You cannot raise an Establishment Clause claim against government inaction (i.e. the failure to exempt). Also, though I did not read all of the comments and replies previously made, I wanted to address something in the ones I did read: viewpoint neutrality is also irrelevant, since there is no Free Speech claim here. Any constitutional challenge that could be raised to this bill would be under the Free Exercise Clause.

The apposite cases for the Free Exercise Clause are Employment Div. v. Smith (1990) and Locke v. Davey (2004). Smith states that any neutral law of general applicability does not violate the Free Exercise clause, unless the Free Exercise right is combined with some other right (typically in practice this means the right to Freedom of Association). For you court-counters out there, Smith was a 6-3 decision written by the late Justice Scalia, with O'Connor concurring in the judgment, but arguing for the use of the compelling interest test.

In Locke, a pastoral ministries major sued the state of Washington under the Free Exercise clause for withholding a state scholarship which the student was otherwise qualified for. The scholarship program specifically excluded studies in theology. The High Court held, 7-2, that the state of Washington could withhold the scholarship on the basis of the student's religious studies. The Court ruled that states have a "historic and substantial interest" in withholding state funding from religion. Any case involving this bill would be controlled by Locke, and the state's interest in non-discrimination could easily support the state's failure to grant an exemption from its law for programs that are not directly and explicitly theological. Therefore, the bill as it stands is constitutional.

Response to a "You can be a Gay Christian" article

You can be a Gay Christian article

This one is a response to the article above. As a preface it is important to establish that scripture does not offer any less condemnation to a sexually immoral life of a homosexual than a heterosexual. Too often churches will attack and rally against homosexuals without addressing the rampant divorce, infidelity, and lust that goes on within its own walls. Christians are not here to judge the world, in 1 Corinthians Paul mentions that we should “judge our own” for the sake of the gospel, it is not the churches’ reign to turn the homosexuals into heterosexuals it is the churches’ job to introduce people to Jesus, the Jesus in the Bible.

First Premise: I agree most people don't know the Word of God nor treat it as such, however I am not one of those people and I do know the Word fairly well and have the resources to understand it, in addition I have the Holy Spirit in me to guide my studies among other things.

As I recall Jesus talks about sex on numerous occasion, such as defining lust and addressing the situation with the woman caught committing adultery to name a couple. Jesus was very clear in defining lust that sexual sin occurs far before the physical realm. The Jewish prophets did not mention homosexuality, okay they are prophecies the books of the law did mention it, and I will get there on that point. That does not mean the epistles have not addressed this issue.

In response to the claim “homosexuality as it is known today” is never mentioned in scripture, I refer to Romans 1 when Paul describes how people exchanged the truth and continued to exchange they get to the point of "exchanging natural desires for unnatural ones... men being enflamed with lust for one another".

Second Premise: I agree that misinterpretations have lead to many deaths and bad things, the Crusades and Spanish Inquisition are among some of the worse things the church has lead. I do not believe we should go about killing homosexual or abortionists as some "Christian" organizations promote, I think that is far from sharing the love of Christ.

Third Premise: I agree being open to the truth of Scripture we must be actively seeking, new truth... I am not entirely sure about that new truth being the same truth found in Scriptures and the same God since the beginning of existence. I don't think we should condemn people with their sins; that is God’s duty. Sin affects every person, how we deal with it makes all the difference. What I see in this site and in other debates with similar resources are people arguing that they can live the lifestyle they want to and be Christians. That is like me saying I can look at all the porn I want to without it affecting my relationship with Christ, or me saying that I can get drunk every night and be a good Christian. If we think God is not interested in these intimate details of our life then we are not believing in the personal God described throughout the Scriptures. God knows the hairs on our head, how could something as important as this, which has such a huge role in our lives not be important to God?

Fourth Premise: Interesting claim, it starts out claiming that God is not interested in our sex lives, I disagree. The bible is a guide to human life on the earth that we do not belong on (See 1 Peter, We are a chosen people, royal priesthood ect..) I don't see how showing spots in the scriptures that are controversial helps the argument that this is going for, is it trying to divert our attention or what? Keep the focus on the issue at hand.

Fifth Premise: I believe the Word of God literally, I think when God said it is "good" that was a comment on how it should be done. Take note that during creation everything created was "good" but when Adam had Eve as his partner they were "Very good".

Interesting claim that the destruction of Sodom was not related to the homosexuals raiding Lot's home to have sex with the angels; other resources say they wanted to "know" the guests, which in Hebrew is true. The only part they failed to mention is that "know" was the same Hebrew word used when Adam "knew" Eve and she got pregnant. Anyways, I think that is wishful thinking to say that the group of men wanting to rape the Angels had nothing to do with God's judgment on the city. God did make a covenant with Abraham if 10 righteous people could be found the city would be spared, which 10 could not be found, so yes the city was not to be spared. I take the crowd of lustful men as one of the many traits of the evil city, not a separate incident the eve of its destruction.

The approach to Leviticus is funny, at least to me. Once again pointing out other ways we follow or don't follow the Books of the Law correctly and it tries to downplay its message by adding the condemnation of shellfish and playing with pigskin. I have never felt a need to argue for the validity of the laws in the Books of the Law seeing that was the old covenant, Jesus is the new covenant. I understood the Law as an implicit message that the Jews would need to see how impossible it was to do all of those things and rely on God to forgive them of their sins. In the same way we look back to the Messiah to save us, they should have looked forward to the Messiah to save them.

Wow, I am impressed it does address Romans 1:26-27, I disagree with the reason Paul wrote those 2 verses that the link suggests. The links says that those behaviors were behaviors used to honor the Greek gods and that is why they were condemned. I very much disagree, if you look at the greater context of that passage you see that it is talking about people exchanging the Truth of God for something different. Each paragraph people exchange the Truth of God and what they exchange it for gets more debauched each time. I can identify that with my own battles against sin. When I battle it is something that for the most part can be seen as harmless, but that little bit of sin gets me to want more; that is how sin works. We give in to a little bit and as we give in it goes further and further. Jeffery Dalmer provided a good example, he started with pornography and that drove him to pedophile to murder to cannibalism ect...

The bit about the further mentions of homosexuality being different, well I understand that it was common at the time for older men to have sexual relationship with young people, both boys and girls. This was a social thing for the empire, I like to take special note that as that practice became widely accepted in the Roman empire, the empire collapsed, I site that as the social breakdown being the primary problem of the empire breaking down. The final point in that premise was pretty much saying that the condemnation of homosexuality was not as it is in this culture. I still think Romans 1 best explains and describes why people are homosexual and what God thinks of it.

Premise Six: Homosexuality did not exist until the 19th century... that is if you believe that the descriptions at Sodom was not homosexuality. As well as the mentions of homosexuality in the Epistles as not actually being homosexuality.

Premise Seven: My studies of Scripture has lead me to believe that in order to follow God I must give up my desire to do things that I want to do. This is where I have the most disagreement with the homosexual lifestyle, it promotes the idea to do what people want. With this line of thinking it is hard to find real reasons against homosexuality in the secular atmosphere, but in the Christian lifestyle I cannot see a place for it. It is a behavior that people want hold onto and do, that selfish attitude is what waves my mental flags that this is not a good thing spiritually. Based on my studies of the Bible, love is expressed by us living our lives for God, not for ourselves and abandoning our selfish desires. Every sin in humanity is selfish in someone way or another, selfishness is the root of sin.

Premise Eight: I am not arguing people for their rights, I am arguing if homosexuality is consistent or inconsistent with the Christian life. Marriage is something created by God, don't touch it. As far as rights as a person, I think they already have that until someone infringes on their rights.