Brigham Young University is asking the U.S. Supreme Court to reverse a lower court’s ruling that would force a religious university to include members on its board of directors with different religious beliefs.
BYU joined five other faith-based colleges and universities in a friend-of-the-court brief filed this week that asks the Supreme Court to hear the appeal of Bethesda University, a Pentecostal school founded by a South Korean megachurch.
Bethesda’s president organized the election of four non-Pentecostal Presbyterians to the board because he believed an accrediting agency would require the school to have a more diverse board, according to another brief. The majority of the board then removed the new members and terminated the president’s employment.
The president and the ousted board members sued. The original trial court and an appeals court ruled in their favor, deciding that Bethesda must retain the four non-Pentecostal board members even though they had not signed the university’s Statement of Faith and “do not hold to the Pentecostal and charismatic mission and worldview of Bethesda University,” the brief said.
Bethesda is asking the Supreme Court to hear its appeal. The brief from the schools states that the court should take up the case and “enforce faith-based criteria” for the selection of leadership at religious schools.
BYU is joined in the brief by Patrick Henry College, Houston Christian University, Arizona Christian University, Liberty University and Regent University.
“How religious organizations choose leaders to direct their mission is a sacred right protected by the First Amendment,” First Liberty CEO Kelly Shackelford said in a news release. “We are hopeful the Supreme Court will protect the religious independence of Bethesda University and all such religious institutions to operate their ministries according to their beliefs.”
What BYU says
When asked for comment, BYU officials directed the Deseret News to the brief from the schools.
“In (our) experience, the cultivation of a Christian identity is not organic. It is a conscientious and deliberate top-down effort that starts with the school’s board of trustees, the trustees’ selection of the school’s leadership, and the leadership’s hiring of faculty,” states the brief.
“For religious higher education to survive, it is critical that religious colleges and universities set the religious and doctrinal requirements for their leaders, without subjecting themselves to second-guessing by the courts,” the brief continued. “Unless corrected by this court, the California court’s ruling strikes at the heart of the First Amendment protections that allow religious higher education to continue to thrive.”
The lower court’s ruling is government interference in the leadership of a religious institution, the brief states.
“It is particularly important to (us) that this court acknowledge that religious colleges and universities have autonomy to adopt and apply faith-based criteria for leadership without government interference. For (the six colleges and universities), maintaining an explicitly religious identity is mission-critical to their desire to provide a faith-based education to college students.”
BYU is governed by a board of trustees whose members are leaders of The Church of Jesus Christ of Latter-day Saints, which sponsors the university.
Both BYU and the Church of Jesus Christ regularly file amicus briefs — the legal term for friend-of-the-court briefs — in religious liberty cases.
How this case is unusual
The number of amicus briefs asking the Supreme Court to take on the Bethesda case has already reached double figures.
“This is a large list for a case that is still at this stage,” Blaine Evanson told the Deseret News. Evanson is an attorney for a brief filed on behalf of a group of religious leaders.
“Once the court agrees to hear a case, then it’s not uncommon for there to be 10, 15, even 30 amicus briefs. To have this many amicus briefs at the petition stage, before the court has agreed to hear the case, is unique,” Evanson said. “It shows there’s a lot of support for the court to take the case.”
The Supreme Court ecclesiastical abstention doctrine requires it to abstain from resolving ecclesiastical questions in a legal claim and to defer to a religious entity’s authority.
The BYU brief says this is a case the Supreme Court has wanted for years
The brief filed by BYU and other colleges and universities traces that precedent back to the 1800s and beyond, to Thomas Becket, the Magna Carta and John Locke.
“Courts have no more business adjudicating who may be in (or out) of a religious school’s leadership and employ on the basis of their adherence to a school’s statement of faith than they do prescribing what doctrines may be in (or out) of a church creed,” the brief states.
The brief, joined by BYU, also argues that the Bethesda case is one that several Supreme Court justices have long anticipated. They have written in past decisions that a future case could allow the court to clarify how the religion clauses protect religiously affiliated groups that are not themselves a church.
The brief specifically mentions Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
“Members of this court have repeatedly signaled that, given an appropriate vehicle, the court should consider explicitly affirming that the protections of the Religion Clauses apply broadly to all religious organizations. This petition provides such an opportunity,” the BYU brief said.
The brief argues that the Supreme Court has been making that clearer in decisions over the past 15 years, from Hobby Lobby to Hosanna Tabor and Our Lady of Guadalupe.
“This case is an ideal vehicle for the court to resolve any doubts that the abstention doctrine applies to all religious organizations, not just traditional churches with hierarchical structures,” the brief states. “In recent years, a majority of justices have recognized the need for the court to explicitly confirm that First Amendment protections necessarily flow to all religious organizations, not just churches.”
How the case applies to BYU’s governance structure
BYU’s governance structure differs from Bethesda’s.
BYU’s president is selected by a board of trustees of the Church Educational System under the direction of the chairman of the board, President Russell M. Nelson, who is also president of The Church of Jesus Christ of Latter-day Saints.
The board’s executive committee, comprised of the three members of the church’s First Presidency, selects the board members, which currently includes two members of the Quorum of the Twelve Apostles and other church leaders.
The church annually gives $1 billion to sponsor BYU, BYU-Idaho, BYU-Hawaii and Ensign College.
The brief BYU joined also notes that while colleges are beginning to see the start of what has been dubbed a five-year enrollment cliff — a demographic reduction in the number of college-age Americans — religious schools are seeing increased enrollment.
The brief argues that “students want what religious colleges and universities offer — a faith-based approach to higher education, free from governmental interference.”
It also argues that preserving the First Amendment ability of religious colleges and universities to set doctrinal requirements for their leadership is essential to the survival of religious higher education.
“The California court’s ruling threatens to undermine amici’s ability to offer — and students’ ability to receive — a scholastic experience steeped in religious teachings and tradition,” it states. “It is commonplace for religious schools — amici included — to adopt a statement of faith, which trustees, administrators, faculty and, in some cases, students, must to affirm as part of their continued involvement with the school.”
What’s happens next in the case
Evanson said it could take a couple of months for the Supreme Court to decided whether to hear Bethesda.
The Supreme Court first will allow the former Bethesda president to respond to the university’s appeal. The university will have a chance to reply to that response.
Then the justices will hold a conference to discuss the case and decide whether to take it. The court hadn’t taken up a religious liberty case since April 2023 until last week.
Meanwhile, President-elect Donald Trump will take office and his administration’s new Solicitor General could take the opportunity for a new Trump-led Justice Department to weigh in on a religious liberty case.