Religious leaders and colleges in California claimed victory this week after deflecting a proposed California bill that would have jeopardized state funding for students at religious schools that did not conform to state policy on gay rights.
At stake were hundreds of thousands of dollars in state tuition subsidies for tens of thousands of low-income students attending private religious schools. These subsidies come in the form of Cal Grants that provide substantial subsidies for poor students at private and public colleges.
The bill would have required any school whose students receive Cal Grants to comply with state nondiscrimination law and provide housing for same-sex married couples on an equal basis with heterosexual couples and to provide bathroom access to transgender students based on their chosen gender identity.
As amended, the bill would now be limited to two types of disclosure. First, colleges would have to publicize if they have requested a religious Title IX exemption from the federal government. Second, they would have to report to the state if a student is expelled for morality code violations.
This disclosure-only shift was hailed as a victory by religious schools and their advocates, but the victory may be a fleeting one.
Kristen Soares, president of the Association of Independent California Colleges and Universities, which opposed the bill in its earlier form, said she expects the bill's author to be back next year.
"This gives us more time to work on this issue," Soares said. But, she says, she is under no illusion that this compromise is anything more than a pause.
Soares' AICC represents 80 campuses in California, 32 of which are faith-based. The group strongly opposed the bill by Sen. Ricardo Lara, D-Bell Gardens, in its tougher form, but it also stated all along that it would support the disclosure and reporting requirements.
This position was echoed by Biola University, a prominent Christian University in Los Angeles, which issued a statement Thursday praising Lara for standing down and embracing the compromise language.
The intermediate step of reporting and disclosure is not inconsequential. The move follows ongoing efforts by the Human Rights Campaign to have the government publicly list any colleges that get Title IX religious exemptions from federal regulations.
“With SB1146, we shed light on the appalling discriminatory practices LGBT students face at private religious universities in California,” Lara said in a statement. “These provisions represent critical first steps in the ongoing efforts to protect students from discrimination for living their truths or loving openly.”
But will even such a compromise be sustainable going forward? There are grounds for skepticism. It is worth noting that the ACLU had formally opposed SB1146 last week before it was amended because the proposal did not go far enough. The ACLU did not reply to request for comment for this article.
Lara had attempted other compromises earlier. In one draft, the bill offered exemptions for colleges focused purely on training clergy.
"We appreciate your effort here," AICC wrote in a statement. "However, this fails to recognize that whether creating future religious leaders or future chemists, these institutions are educating students in an environment where academic programs and faith are intertwined."
"These are really complex issues and important ones for many groups with many different perspectives," Soares said. "There is a lot to work through, a lot of conversations to have."
Soares is walking a very tortuous path. Nearly half of her member institutions are religious schools, but her home state is tilting firmly in toward endorsing sweeping LGBT rights claims. Soares chooses her words carefully in her interview, and expresses a firm commitment to fairness and protecting the interests of students.
The language of SB1146 discarded for now but certainly on the horizon again soon would have prevented religious schools from "enforcing rules of moral conduct and establishing housing policies in accordance with these rules of moral conduct if the rules are uniformly applicable to all students regardless of the student’s sexual orientation or gender identity."
Soares gestured toward possible compromises, but the compromises sound a lot like the language just discarded. She suggests neutrality on sexual ethics for nonmarried students. Would public displays of affection, or PDA, be treated neutrally? Would a Christian college actually ban hand-holding for all unmarried students? As bill was written, that would be required. And what do these schools do about married students, and married student housing, now that same-sex marriage is legal?
"What it will look like going forward, I don't know yet," Soares said. But she has no doubt that Lara will be back, and that this is not over.
Among those digging in for pitched battle this week, as well as those thrilled with the momentary reprieve, was The Becket Fund for Religious Liberty, a conservative public interest law firm which found itself, in this case, in more of a political battle than a legal one.
On one level, Becket was poised to fight over taxpayer cost. Sending students to state universities is far more costly than subsidizing them at private schools, said Daniel Blomberg, an attorney with The Becket Fund.
Forcing all of their 16,000 low-income students currently receiving Cal Grants into the state university system would cost the state $120 million a year, according to a budgetary analysis by the Assembly Appropriations committee.
“Thirty thousand students were turned away from the California State University system last year alone,” Blomberg said.
Putting a face on those numbers, Becket filmed a series of videos featuring three Latino men and an African-American woman at Fresno Pacific University, each telling a personal story of poverty, faith and opportunity. “Meet the Students SB 1146 Harms,” the headline reads.
Preparing for the fight, several religious universities quickly formed an ad hoc committee, called the Association of Faith Based Institutions. They raised $350,000 for what promised to be a bruising battle.
One of the key organizers for AFBI was Azusa Pacific University, a Christian college with 10,000 students near Los Angeles. On its website this week, Azusa applauds the reversal on SB1146, but says the AFBI will continue to grow, with more than a dozen institutions now having joined.
Pressure accelerated when Archbishop José Horacio Gomez of the Los Angeles Catholic Archdiocese spoke out forcefully against the bill, with an article in a Catholic publication, The Crux. The article was titled, "California bill threatens religious freedom, minorities and the poor."
While Blomberg recognizes this battle is far from over, he notes approvingly that Lara's public statement referred to "possibly." That note of uncertainty, he said, suggests Lara is amenable to compromise going forward.
Rights in conflict
The temporary compromise in California was fortunate, said Jonathan Rauch, a fellow at the Washington, D.C.-based Brookings Institution and a writer for the Atlantic, who is gay and is leading moderate voice on LGBT issues.
"You have two rights in conflict," Rauch said, pointing to the First Amendment protections of religious practice and the 14th Amendment anti-discrimination language.
"These are coming into increasing structural conflict," Rauch said. "Both sides see what the other side wants as a violation of a core civil right embedded in the Constitution."
At the core of the new wave of LGBT activism is the assertion that discrimination in this space is morally and legally indistinguishable from racial discrimination. This, Rauch argues, is a mistaken parallel.
Given the legacy of slavery, race holds a unique position in American history, politics and constitutional law, Rauch argues, while other nondiscrimination claims, including LGBT concerns, involve much more complex balancing.
Rauch has long argued that confrontation and brinksmanship are not in the interest of LGBT advocates. At root, Rauch seems confident that time is on his side, and is willing to accept incremental movement, fearing that pitched battles will leave enduring scars on a body politic already reeling on so many fronts.
"The drift for the last five years," Rauch said, "has been away from social compromise and toward a confrontational approach, where each side holds a broad interpretation of their own rights and denies the legitimacy of the other side's rights."
A purist on the LGBT side, Rauch says, could see the Cal Grants as a simple case of discrimination.
"This is discrimination, and the state can't spend its money that way. End of story," he said.
Whether that posture makes sense from a social and political perspective is another matter.
"It sounds like cooler heads have prevailed in California," Rauch said, "and they seem to have decided that the gain would not justify the cost."
The upside of the push, Rauch said, would be to bring to extract conformity from a small number of institutions in California.
"But the cost," he said, "could potentially be a national panic, among a lot of religious people and their allies, and a wave of litigation, which always drives polarization."