Editor’s note: The following essay is part of Deseret Magazine’s issue on the fate of the religious university, with contributions by presidents and scholars from Baylor University, BYU, Catholic University, George Fox University, Wheaton College and Yeshiva University, among others. Read all the essays here.
As America has grown more diverse, more secular and more technologically advanced, religion has increasingly been relegated to the margins of society, and the university is no exception. Increasingly it is a place where people of faith are told that their views are outdated, misguided and outright bigoted. It is a place where secular and “neutral” viewpoints control the levers of power. It is a place where religious expression is wrongly criticized for impeding social, racial and economic justice.
Do not be mistaken: These dominant voices, both on college campuses and at every level of government, have their own moral framework they seek to impose. Whether on issues of sexuality and identity, the family or medicine, they strive not only to promote their own vision of morality, but also to scrub religion from the fabric of our culture. They are anything but neutral. Their ideology threatens the roots of what a university is meant to be and the university’s influence on what America is to become. Even the famed libertarian premise of “live and let live” is only a vision of the past no longer reflected in policies at the university or within the broader public.
Our firm, the Becket Fund for Religious Liberty, has seen the far-reaching effects of this trend on college campuses and throughout our nation. Lawsuits on both private and public campuses are bringing to light the persistent threats facing religious liberty in America. Time and time again, college administrators are waging war on their own students, restricting their ability to exercise their faith and depriving their campuses of the benefits of a vibrant and religiously diverse community. Something similar is happening at private religious schools, with a growing number of outside organizations challenging religious schools’ right to maintain their religious principles. We must confront these forces at every turn.
They often rely on a Supreme Court ruling issued over a decade ago in Christian Legal Society v. Martinez, which proved dismal for religious liberty in the years that followed. The case involved a Christian student group at the University of California’s Hastings College of Law that required its leaders to accept and adhere to a statement of faith. The students argued that to form a Christian association, their leaders had to be Christian. How could their group maintain its religious identity if not shepherded by leaders who embraced its faith? UC Hastings countered that the group’s leadership standards violated its nondiscrimination policy. In April 2010, in a hotly contested 5-4 opinion, the Supreme Court ruled in UC Hastings’ favor, threatening the associational rights of student-led faith groups across the country.
Soon after, similar cases began popping up on public campuses around the country. The Becket Fund just recently argued two such cases against the University of Iowa, representing student groups kicked off campus for requiring their leaders to affirm their Christian convictions. Although the university allowed fraternities to restrict their leadership to men, and feminist groups to require their leaders to share certain views on contraception and abortion, our clients were told they had to meet off campus if they wanted leaders who shared their beliefs. When a federal judge initially warned against this unlawful religious discrimination, the university responded by kicking most other religious groups with leadership standards off campus, too, as if to say that mistreating religion was OK as long as all religions were mistreated equally. Nearly 40 Islamic, Sikh, Christian, Jewish and other religious groups were sent the message that upholding their religious beliefs made them unwelcomed on campus. Notably, one group with a less traditional, university favored statement of Christianity was permitted to remain.
To growing numbers of college administrators, professors and students, the idea of God on campus is anathema.
Fortunately, we successfully defended our clients in the federal court of appeals, so they could eventually return to campus on equal terms with all other student groups. But four years of being treated like second-class citizens by administrators and facing the vitriol of antagonistic students took a serious toll. One of the groups we defended barely survived the lawsuit and — not long after — was forced to close its doors. In litigation, the process is often the punishment, and university officials know they can lose the lawsuit but still claim the prize: shutting down groups whose beliefs they disapprove of.
Today’s attacks on religious liberty at universities do not end with student groups at public institutions, although we see a lot of those cases. They also include challenges to private religious schools’ ability to operate within their distinct faith traditions.
One such case involved a leading Protestant seminary. In applying, all students are required to sign an agreement affirming the seminary’s community standards, which include traditional expectations regarding marriage and sexuality. Two students later admitted they had violated these standards by entering same-sex marriages and, as a result, were dismissed from the seminary. The students sued, asking the courts to penalize the seminary for its decision about who was eligible to minister within its own faith tradition. They argued that, because the seminary accepted students’ federal grants and loans as tuition, any religious standards had to give way to federal nondiscrimination laws. While a court of appeals ultimately ruled in the seminary’s favor, the time spent defending against these unlawful attacks on its internal religious standards diverted focus and resources from its religious mission.
Unfortunately, courts don’t always get these cases right. Last year, Yeshiva University — the nation’s preeminent university for modern Orthodox Jews — was sued by a handful of students for allegedly violating New York City’s nondiscrimination law by declining to recognize a Pride Alliance club. Although most students at Yeshiva University study Torah up to five hours a day before commencing their secular studies, and are expected to observe the laws of Shabbat and kashruth on campus, the court held that Yeshiva was not sufficiently religious to deserve First Amendment protection. The ruling turned, in part, on Yeshiva’s decision decades ago to accept students’ state and federal funding for tuition.
We are still appealing that decision to defend Yeshiva’s Jewish identity and the right to control its internal religious affairs. The trend throughout these cases is as dangerous as it is unjust. Religious formation, especially in education, is crucial to the well-being of our country. College graduates go on to lead not just churches, but also corporations and communities, nonprofits and nations. No one disputes that a stellar secular education is essential to good governance in all these arenas. But so is good moral character, which is essential to appreciate the fragility of freedom, the complexity of scientific achievement, the virtue of commerce and the nuance of human needs.
A society that pushes religion to the side rejects not just demanding theological principles but the world’s most profound and enduring influence for developing individual integrity, humility, compassion and vision — traits we desperately need in leaders in all aspects of life. The university arguably has the greatest access to America’s future leaders. Preserving space for religious formation in higher education is thus paramount. The environment on college campuses is reflective of what is happening in the public square, and the corrective is the same: respecting religious conviction, protecting freedom to disagree and recognizing the social good that religion brings to the public square.
Despite challenges, we are optimistic about the future. Recently, the United States Supreme Court has taken pivotal steps to protect religious freedom in both public and private schools.
In 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled 7-2 in favor of our Catholic school clients’ First Amendment right to employ teachers who would exemplify the beliefs of the Catholic church “in word and deed.” The court recognized that religious education is “vital to many faiths practiced in the United States.”
In terms of time spent, teachers often have far more influence on students than religious leaders. The court concluded that “judicial intervention into disputes between the school and the teacher” thus would unconstitutionally violate schools’ religious freedom to form students in the faith.
Religion has increasingly been relegated to the margins of society, and the university is no exception.
Just this year, in Kennedy v. Bremerton School District, the court upheld the right of a high school coach to pray in between his official duties at a football game. Contrary to some alarmist responses, the court did not address teachers “leading prayers” with students or before a “captive audience” — practices the court has previously struck down. But considering the many ways public school teachers convey their own diverse beliefs and values to students, it would be discrimination targeted at religion to prohibit personal religious expressions or observance by teachers just because they are at school. Instead, the court wisely concluded that tolerance and respect for others’ personal religious exercise is “indispensable to life in a free and diverse republic.”
In Carson v. Makin, also decided this year, the court rejected the argument that government can favor secular private schools over religious private schools in granting funding. It is long settled, under the Establishment Clause, that the government cannot directly fund favored religions alone. But Carson made clear that once the government makes funding broadly available to private entities — as it frequently does in education, historic preservation, medical care and countless other areas — it cannot exclude religious individuals or institutions, even if that funding incidentally supports some religious purpose.
Again, it would be blatant religious discrimination if, for example, once the government guaranteed Pell Grants to students in need, it forbade religious students from using them at religious schools. Carson held this would violate the First Amendment’s free exercise clause by allowing the government to use its funding powers to disfavor religion.
One additional case warrants mention, although it arose outside the context of education. In June 2021, the court in Fulton v. City of Philadelphia affirmed the right of religious institutions to serve their communities while still staying true to their religious convictions. In that case, heroic foster moms in the City of Brotherly Love partnered with Catholic Social Services to open their hearts and homes to needy foster children. Catholic Social Services, in turn, partnered with Philadelphia to recruit and support loving foster families.
But when Philadelphia found out that Catholic Social Services adhered to the traditional Catholic view of marriage, it attempted to shut down the ministry and remove children from its partnering foster moms, even though the city was short thousands of beds for kids in need. In a remarkably unanimous opinion, the court chastised the city’s religious discrimination. It recognized that in a pluralistic society, individuals and institutions of good will must be free to participate in the public square regardless of disagreements on difficult and sensitive issues.
American judicial rulings are famously case specific. For years to come lawyers will continue to argue how they apply in similar but nuanced factual circumstances, including cases about how nondiscrimination policies apply to religious students on public campuses like the University of Iowa and to private religious schools like Yeshiva University. But these recent Supreme Court cases are encouraging.
Almost 30 years ago, now-President Dallin H. Oaks, first counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints, testified before Congress defending First Amendment protections for religious freedom. Reflecting the feelings of many religious communities that, at one time or another, have been viewed as outsiders, he remarked that religious persecution was “not academic history” to him or his community, and that “political power or impact must not be the measure of which religious practices can be forbidden by law.” “There is nothing,” he concluded, “more sacred to a religious person than the service or worship of God.”
The spirit of tolerance and respect reflected in this statement and in the Supreme Court’s most recent rulings is at the heart of the American experience and the university tradition in particular. University is where young adults can learn to engage complex and difficult issues in a spirit of humility, good will and openness to learn. Religion has millennia of thought and experience to contribute to this process. Protecting space for religious students and universities to bring this to bear promises great dividends and is well worth the fight.
Eric Baxter is a vice president and senior counsel at the Becket Fund for Religious Liberty. María Montserrat Alvarado is the executive director at Becket.