As religious convictions are met with new legal challenges, what's at stake for schools like Biola?
By Brett McCracken
What happens when the Christian conscience conflicts with the laws of the land? The U.S. Constitution protects the free exercise of religion, but what does “exercise” include? Does it encompass the expression of faith in a for-profit business? This was a question raised by Burwell v. Hobby Lobby, this summer’s landmark Supreme Court case that examined the scope of religion freedom for closely held for-profit corporations.
What about religious nonprofits? Will relief organizations and Christian colleges maintain the freedom to define their Christian identity broadly – as a communal movement that calls us to live and serve the world for Christ, beyond a private home or a church’s walls? Religious freedom is increasingly a contested issue in our society, and it’s hitting close to home for communities like Biola University.
Yet it’s less about politics than it is about principles. What’s at stake is the freedom to be who we are – to do life together in the manner we believe God has called us.
Challenges to Religious Freedom in Christian Higher Education
For Christian colleges like Biola, religious freedom challenges have legal, financial, philosophical and theological implications.
The key legal question is how shifting cultural norms, and their accompanying legal protections, will interact with religious freedom protections for institutions that hold orthodox Christian beliefs, said Shapri LoMaglio, vice president for government relations and executive programs at the Council for Christian Colleges & Universities (CCCU).
The question arose in 2010, for example, with the passing of the Affordable Care Act (ACA), which contained a mandate for faith-based employers to offer free access through their group health insurance plans to all government-approved contraceptive drugs — including those that might induce abortions. Biola was among many religious colleges (including schools like the University of Notre Dame, Wheaton College, Catholic University and Dordt College) that responded by filing lawsuits against the Department of Health and Human Services.
Writing in the National Review about why Biola filed its HHS lawsuit, President Barry H. Corey said the most unsettling thing about the mandate was its unprecedented narrowing of the type of organization whose religious freedom is considered worthy of protection.
“Biola University is about as faith-driven and religiously oriented as a university can be,” Corey wrote. “So if we don’t fall within the protection of a ‘religious exemption,’ something is fundamentally wrong.”
More recently, the State of California’s Department of Managed Health Care (DMHC) issued a letter on Aug. 22 requiring all health insurance companies doing business in California to include coverage for all abortions, including elective abortions, in all employer-sponsored insurance plans. The letter described abortion as a “basic health care service” and said “all health plans must treat maternity services and legal abortion neutrally.” Although efforts are being made to object to this new requirement, there is no provision for a religious exemption and Biola’s health insurance providers are now required to include coverage for all abortions.
Other religious freedom challenges facing Christian higher education involve sexual orientation and gender identity and expression.
On July 21, President Obama issued an executive order that added sexual orientation and gender identity to the list of classes protected from employment discrimination by federal contractors. This means religious organizations that are considered federal contractors, subcontractors or vendors are now subject to these new nondiscrimination rules. This executive order did not include a religious organization exemption, but it also did not remove the existing religious staffing exemption. This raises some serious concerns. For example, if a religious organization subject to the order does not exclude potential employees based on sexual orientation and yet maintains an employee conduct standard that restricts sexual conduct in accordance with its religious values, the question is raised as to whether it is lawfully exercising its right to consider religion in hiring or, instead, violating the new nondiscrimination requirements.
Much attention was given this summer to Gordon College President Michael Lindsay, who signed a petition — alongside Rick Warren, Gabe Lyons and 11 other religious and political leaders — supporting a religious exemption that balanced the government’s interest in protecting “both LGBT Americans, as well as the religious organizations that seek to serve in accordance with their faith and values.” Lindsay’s stand for religious freedom resulted in accreditation scrutiny by the New England Association of Schools and Colleges (NEASC). Additionally, the nearby city of Salem terminated Gordon’s contract to manage the city’s historic Old Town Hall, citing a nondiscrimination ordinance. The Lynn public school district also severed an 11-year student volunteer partnership with Gordon, citing the college’s opposition to federal hiring protection for gays and lesbians, according to the Boston Globe.
In addition to nondiscriminatory hiring practices, issues involving transgender students have recently posed challenges for CCCU members such as George Fox University and California Baptist University. The George Fox case involved a male-identifying transgender student who filed a complaint with the U.S. Education Department because the school denied the student’s request to live in male student housing, instead offering the student a private room. The Education Department responded to the complaint in George Fox’s favor, granting the college an exemption to Title IX’s prohibitions against discrimination on the basis of gender identity.
The California Baptist case involved a female-identifying transgender student who was admitted with a scholarship in 2011 but whose admission was later rescinded when the university learned that the student had identified as transgender on a reality television program. The student’s lawsuit cited the Unruh Civil Rights Act, which prohibits discrimination based on gender identity. This summer, a California Superior Court judge ruled that California Baptist’s actions were within its rights, as an organization whose primary mission is “the inculcation of a specific set of moral values.” However, the judge also ruled that the university could not bar such individuals from certain publicly accessible places on campus or from its online educational programs, which was seen as a victory by those opposing widespread exceptions to state civil rights laws for religious organizations.
These are just some of the many challenges facing Christian higher education institutions that, in the midst of a quickly changing moral and legal landscape, strive to remain faithful to deeply held Christian convictions. What are the implications of all this? Should Christian colleges be concerned?
What’s at Stake?
What’s at stake for Christian colleges and universities is our freedom to practice the convictions we hold, living in the way we believe we are called to live, Corey said.
“For us at Biola, freedom of religion means the freedom to live out our faith together in community,” Corey said. “Our nation is not made up of 300 million individuals; it’s made up of churches and families and corporations and organizations and schools and universities, each with norms and expectations and types of covenants. We deeply believe in these covenants.”
One of the things that has historically made America attractive as a melting pot refuge is that it values peaceful pluralism — the idea that people can live here with their deeply held convictions and not be subject to the whims of rulings regimes. It’s why America has always allowed groups like Quakers to refrain from fighting, as conscientious objectors, even in times of national war efforts, said Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance at the Center for Public Justice.
As our society becomes more and more pluralistic, it becomes even more important “to find a way to accommodate these differences and give them space, or else it’s only one group that’s going to feel like they’re at home here,” Carlson-Thies said.
One of the chief values of religious freedom in a pluralistic society is that it serves as a check of the government’s power to define the contours of protected religious exercise.
“If you give to the government the ability to differentiate between what religious convictions are really and truly important or not, then we will wind up with a state-established religion in which the government says, ‘a vague concept of the divine is all that really matters, and all of your particularities can simply be wiped away like a building being plowed away by eminent domain in order to build a new business,’” said Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, at a recent summit for evangelical leaders.
If a Christian college maintains that certain standards of sexual conduct (heterosexual or homosexual) are an essential part of its expression of religious identity, should the government take the college at its word? If it comes down to the freedom of individuals versus the freedom of religious groups and institutions, whose freedom will the courts privilege? These are key questions in the issues facing the CCCU, and depending on how they are answered, the implications for Christian higher education could be costly in more ways than one.
The Practical Costs
If laws and regulations change on these matters so that religious exemptions are narrowed or eliminated, what would be the consequences if a Christian college chose to maintain historical convictions rather than compromise on deeply held principles? The practical consequences would be potentially dire.
One huge impact would be financial, said the CCCU’s LoMaglio. Even though schools like Biola are private institutions, most of their students depend on the school’s eligibility for federal Title IV funds, which include such assistance as Perkins loans and Pell grants. Will any future federal nondiscrimination policies or Title IX amendments apply to Christian institutions’ eligibility for Title IV funding, or will there be religious exemptions? If the former, then tuition-dependent institutions such as Biola will face severe financial challenges as access to federal financial aid disappears for students already burdened by high tuition costs. In Biola’s case, the threat could also come from state laws that put Biola’s eligibility for Cal Grants in jeopardy.
Accreditation is another potential threat. Accreditors are private organizations that aren’t inherently bound to what the government does or doesn’t choose to do. So even if the government chooses to apply religious exemptions generously, accreditors may not. Loss of accreditation would mean loss of credibility as a degree-granting institution, but it would also have bearing on funding. In order to be eligible for Title IV funds, institutions must be fully accredited by an Education Department-recognized accreditor. Thus, if an accrediting agency decides to revoke a school’s accreditation based on what it sees as discriminatory practices, the school would lose access to Title IV funding as well as the legitimacy of its degrees.
The Ideological Costs
In addition to the practical costs of potential lost federal funds and accreditation, there are significant potential ideological costs. Most important, perhaps, is the way that religion and religious expression are being defined ever more narrowly, as encompassing little more than private, individual worship or church attendance. What is being eroded for religious institutions like Biola — which are not churches but are nevertheless defined by and organized around religion — is the conviction that Christianity isn’t just a parcel of identity cordoned off from the rest of an individual’s life, but a holistic and communal way of being in the world.
Writing on his blog in response to his then-employer Wheaton College’s decision to file a lawsuit contesting the HHS contraceptive mandate, Baylor University professor Alan Jacobs said his primary concern was not with contraception but with the government’s move to narrowly define the “religion” part of “free exercise of religion.”
“The government’s position suggests a move to confine freedom of religion to freedom of worship, but all authentic religion is far more than worship: it is also a set of practices in the world, practices which the U.S. [g]overnment is constitutionally bound to protect,” Jacobs wrote.
The HHS mandate, he wrote, “threatens to confine religion to a disembodied, Gnostic realm of private worship and thought. Even those who support abortion and contraception should not want to see the government defining religion maximally as private thought and belief.”
This definitional narrowing of religious freedom has been at the heart of why Biola filed its lawsuit, arguing that the university is fundamentally religious. Religious freedom should not be confined to what happens on Sunday morning, said Scott Rae, professor of Christian ethics at Biola’s Talbot School of Theology. Genuine Christian faith cannot be privatized because it has “an inescapable social and public dimension to it,” he said.
The HHS mandate’s definition of constitutionally protected religious organizations “truncates genuine Christian faith and relegates it to something that it’s actually not,” Rae said. “Telling someone you have the freedom to practice a truncated faith is like saying there’s no freedom to practice your faith.”
Religious freedom protections should apply not only to individuals but to groups of individuals, such as religious institutions, businesses and nonprofits, said Tom Wilson, associate professor of law, ethics and human resource management at Biola’s Crowell School of Business.
Wilson, a trial lawyer, said that with respect to freedom of religious expression there is no meaningful legal distinction between an individual or a group of individuals who all agree on something.
Both Wilson and Rae were optimistic that the June 30, 2014, Supreme Court ruling in Burwell v. Hobby Lobby could set a positive legal precedent for the application of religious freedom protections not only to individuals but to all sorts of religious organizations, including private businesses but also nonprofits.
The court’s 5–4 decision determined that the government “substantially burdens” religious exercise, in violation of the Religious Freedom Restoration Act (RFRA), whenever it imposes significant pressure upon an organization to violate its religious convictions, said Gregory Baylor, senior counsel for the Alliance Defending Freedom, the organization representing Biola in its HHS mandate lawsuit.
Baylor said the Hobby Lobby case demonstrates that the Supreme Court is willing to accept what religious organizations say violates their religion, which could have bearing on future cases involving Christian colleges and religious exemptions.
Others, such as Christianity Today executive editor Andy Crouch, believe parts of Burwell v. Hobby Lobby reinforce society’s “truncated” view of religion.
In an editorial titled “Life Together, Again,” Crouch cited Ruth Bader Ginsburg’s dissent in the Hobby Lobby case as a reminder of how “fewer and fewer of our neighbors understand how religious organizations — and all communities smaller than the state — contribute to human flourishing and the common good.”
Crouch noted that in her dissent, Ginsburg espoused narrow views of the goals of for-profit groups: “to make a profit, rather than to perpetuate a religious-values-based mission.
“The words rather than are key,” wrote Crouch. “In Justice Ginsburg’s view, it seems, corporations cannot serve — or at least the law cannot recognize that they serve — any god other than Mammon. She articulated an equally small view of nonprofits when she wrote that ‘religious organizations exist to foster the interests of persons subscribing to the same religious faith.’”
Crouch found it sad that Ginsburg seems to have “never met a religious community that takes seriously William Temple’s words that the church ‘exists for the benefit of those who are not its members.’”
Have We Perpetuated the Problem?
The narrowing cultural understanding of what constitutes religious identity and expression may be the biggest ideological threat to the future of institutions like Biola, but are Christians partly to blame for perpetuating the problem?
Have Christians in America bought into individualism to such an extent that we’ve downplayed the church’s fundamentally communal identity, both in our practicing and articulating of Christianity? Have we rallied around the banner of “individual rights!” to the extent that we are now in a weak position to claim that some individual rights must be given up for the sake of Christian communal expression? Does the ubiquity of seeker-sensitive, have-it-your-way, just-me-and-Jesus Christianity in America make it hard for us to claim that religious groups and institutions are as (or more) legitimate manifestations of religion than individuals worshiping in their own preferred way?
Perhaps we need to take a closer look at the relationship between individual and group identity, said Carlson-Thies.
Collectivism and individualism are inconsistently adopted by various sides of the political spectrum, Carlson-Thies said. Conservatives are sometimes the loudest advocates for individual rights, but on the issues of LGBT rights, the progressive community is the one appealing to individualism while conservatives uphold the importance of institutions. On other issues, such as poverty and education, progressives employ the values of collective responsibility while conservatives emphasize the importance of individual effort.
Yet everyone inherently recognizes the importance of tribes, said Carlson-Thies. Whether in the gay community, or a sports fan community, or a collection of people with shared religious convictions, individuals find meaning, support and direction in groups.
Carlson-Thies said Christian institutions like Biola must help all of their individual constituents understand the nature and value of the group identity.
“Individual rights are really important, but we wouldn’t be able to form these rights, defend them, talk about them, develop them further, exemplify them, if we couldn’t be a community that lives by different values than many other people around us,” he said.
Christians should also be mindful of not perpetuating the “narrowing definition” of Christian expression by living a “Sunday only” type of faith. If religious faith is more a thing that we say than a fully orbed way that we live, we may inadvertently play into the societal perception that religion is a narrow subset of life that doesn’t need to have bearing on “secular” things like business, employment practices or sexual conduct.
Carlson-Thies said he finds it interesting that most CCCU schools talk a lot about the “integration of faith and learning,” whereas the Wesleyan tradition expands it to the integration of “faith, learning and life.”
“Putting the ‘life’ on there communicates that it’s not just something in your head,” he said. “It makes it clear we’re a community of people that live by certain standards as part of a community covenant.”
What Can We Do?
What can Christian institutions like Biola do to better position themselves for present and future challenges to religious freedom?
1. Defend religious freedom globally
Religious freedom may be an increasing challenge in the U.S. but it has been and continues to be an even more dramatic, life-and-death challenge globally. Christians are being killed for their faith and driven from their homes in Iraq and Syria. In North Korea there are at least 70,000 believers in labor camps. In Egypt, many Christians cannot walk down the street without fearing for their lives.
Junior Mourin Serour knows this firsthand. After growing up outside Cairo, she and her Coptic Christian family fled to America in 2011 after it became too dangerous for them to stay in Egypt. As a Christian woman in a Muslim-majority nation, simply walking in public without wearing a hijab made Serour a target. Her life was threatened on numerous occasions.
Serour said it’s “amazing” to be in a safe Christian environment like Biola, where she is studying biology with hopes of one day returning to Egypt as a dentist, but she does find that many Christians in America don’t fully appreciate the freedom they have.
“Just peacefully walking the street is something Americans take for granted,” she said. “If we step outside of America and see what is going on in the world we should be so thankful.”
On one hand, Christians in America could look at what’s happening around the world and find our religious freedom challenges here almost laughably minor by comparison. But on the other hand, it could give us a view into where we may be headed, said David Curry, president and CEO of Open Doors USA.
“Right now persecution is episodic in the West and it’s not episodic in the Middle East and in North Korea — it’s constant,” said Curry, whose organization aids persecuted Christians around the world. “I think we have to understand that persecution of Christians will be the issue in the next generation and beyond.”
Curry believes that what is happening in small ways with religious freedom in America can give Christians a heightened sensitivity to what is happening to Christians globally. He hopes American Christians will pray for the persecuted church but also help meet their practical needs, like loving and welcoming expatriates and refugees, like Serour, who come to the U.S. to escape persecution.
Judith Rood, professor of history and Middle Eastern studies at Biola, agrees with Curry that a sense of solidarity with persecuted Christians in other cultures is essential.
“We need to pray for [Middle Eastern Christians], but we also need to see these people as part of us,” Rood said. “We have to broaden our idea of what it means to be a Christian, and not just in our American context. I think we need to have a sense that we are the church; we are the movement.”
2. Partner with others to defend religious freedom
The global challenge of religious freedom must be addressed with coordinated partnership rather than unilateral action.
“This issue calls us to come together both to stand our ground and to be the winsome witness that we can collectively be,” Corey said. “We have to do this together.”
This means Christians of all stripes — evangelical, Catholic, Orthodox, Coptic — should partner with each other and defend one another’s freedom. But it also means Christians should defend the religious freedom of other religions, too. If Christians want the right to practice their faith and not compromise their convictions, they should also defend Muslim or Jewish communities from being forced to act against their faith.
Christians should embrace this sort of “civic pluralism,” Carlson-Thies said. “It doesn’t mean that we think [all religions] are correct — just that we respect their desire to live true to their conscience, because that’s what we desire ourselves.”
Wilson agreed, noting Christians’ best argument for religious freedom may be that in a pluralistic society, we have as much right as any other faith-based group to express our religion freely, without government intrusion.
“If our nation truly welcomes pluralism, then we as Christians are part of that pluralism,” said Wilson, who added that embracing pluralism is not the same thing as “all beliefs are equal” syncretism.
Rather than claiming a privileged place at the table or advancing a sense of exceptionalism, Christians should simply advocate for a level playing field where the gospel can take root, said Corey, who believes Christians should be confident enough in the power of the gospel to be OK with its just being “at the table” in the marketplace of ideas.
“Religious freedom is not ‘We deserve to be treated in a special way,’” said Corey. “It’s recognizing that covenantal communities exist everywhere with certain norms that are tied to deeply held values, and our right to exist according to these norms must be protected.”
3. Embrace the communal, voluntary orientation of Christianity
Christianity is a belief system worked out in community and not simply in the private domain of individual preference, untethered to community standards of belief and practice. In a society as thoroughly individualistic as ours, this notion may be quite countercultural. Christian institutions must nevertheless defend it.
A pluralistic society may celebrate diverse communities, but it must also recognize that communities need boundaries in order to survive.
Just as political parties must exclude some policies in order to advance others and families must embrace exclusive vows and bonds of loyalty, wrote Crouch, “Religious communities hold their members to unique and often higher standards than those of the broader society.”
“And here lies the rub: an individualistic world is scandalized by any community whose boundaries threaten the freedom of the individuals within it,” Crouch wrote. “Especially, we are discovering, when those boundaries place restrictions on the choices individuals make about sex.
Christian communities must not shy away from the necessity of boundaries and the importance of holding individual members to the agreed-upon covenant, even while they welcome anyone who agrees to voluntarily join.
The key word is voluntarily. Colleges like Biola are voluntary communities. An individual who does not share the values of a certain community is not obligated to join it.
“Biola is not just an accident of people who happen to be in La Mirada,” said Baylor. “They’re organized around Christian commitments that are articulated in a particular way. If you say that individuals can willy nilly dissent from those commitments, then that’s no longer a defining characteristic of the community. What, then, is the community about?”
4. Show how Christian colleges contribute to the common good
Christian colleges must defend their freedom to be fully Christian, but they must also show why these institutions are worth preserving. What would the nation be like without the common good contributions of Christian colleges?
“Our schools need to tell their stories and tell the good work that they are doing: graduating underrepresented communities, graduating students with below average student debt and low default rates, graduating students who contribute to society broadly and do wonderful things,” LoMaglio said.
President Corey agreed, noting that many graduates of Christian colleges give up high-paying jobs to go into service-minded organizations and industries and global relief and development.
“If suddenly Christian higher education was expunged from our culture, I think there would be a dramatic impact on the way that neighborhoods, school systems, NGOs and nonprofits are able to thrive,” he said. “We don’t need to be known as the anti-this or -that school; we need to do a better job showing how our particular way of doing education produces significant good in the world.”
Though religious freedom challenges are not as dire in the U.S. as they are in other parts of the world, the stakes are still high and the implications troubling. The threat is “existential” for Christian institutions like Biola, Baylor said, due to the potential for lost funding and accreditation.
Will the freedom to be a Christian, in the fullest sense of what that means, survive in America?
“I think knowing where it can lead makes you diligent about even the slightest chipping away of religious freedom,” said Rae. “I don’t think it takes too much imagination to see Christian universities and organizations being put at huge disadvantages in the next decade.”
Perhaps what we need to do most is pray: for the future of religious freedom both domestically and abroad; for a spirit of collaboration and discernment among those whose convictions are under scrutiny; for the courage to respond winsomely and compassionately to accusations that may come; for the freedom, and the courage, to follow Christ in all aspects of life.