The Courts Alone Can’t Protect Christian Colleges

Written by on October 14, 2020

Last week brought good news for Christians and faith groups across the country.

In Maxon v. Fuller Theological Seminary, a federal court ruled in favor of religious liberty and in so doing enabled the school’s unique Christ-centered mission. The case involved the ability of religious institutions to set admissions standards according to their sincere beliefs. While this historic decision is cause for celebration, it’s also a reminder that Americans cannot rely solely on the courts to defend their right to exercise faith in the public square. That’s because religious liberty is under continuous pressure, not only in the courts but in Congress and state legislatures as well.

As Christians, we must be vigilant and proactive as segments of society seek to dilute or eliminate the fundamental American principles that have shaped this nation, not only for our faith but also for all other faiths. That’s why we need a robust, multipronged, and nonpartisan strategy for defending religious liberty.

The Maxon v. Fuller case helps illustrate what’s at stake if we fail to act. As the president of the Council for christian Colleges & Universities (CCCU), I took great interest in this case, knowing the outcome would directly affect the more than 140 colleges and universities that my organization serves. Maxon was just the latest in a string of lawsuits intended to force christian schools to compromise their religious standards or be stripped of their accreditation, their tax-exempt status, and other government benefits widely available to other institutions.

In Maxon, the plaintiffs alleged that Fuller had discriminated against them for entering into same-sex marriages. This, they argued, was in violation of their rights under Title IX. But the court ruled in favor of Fuller because the Constitution, statutory law, and a long history of precedent altogether provide protections for religious organizations. In fact, both Title VII and Title IX include exemptions for faith-based institutions. Those exemptions allow them to set their own standards for hiring, firing, and admissions based on deeply held religious beliefs.

It’s worth noting that the codes of conduct at a religious institution are not just negative restrictions but instead set out mutual promises based on the school’s sincere biblical views. The standards are there to help faculty and students bring out the best in each other. The covenants are well publicized and agreed to voluntarily. Moreover, CCCU schools like Fuller strive to uphold their codes in ways that treats students with respect and understanding—as people who are made in the image of God and who often face real pain when they violate the agreed-to standards.

If the California court had not upheld the right to have these codes, the implications for religious higher education would have been disastrous. Hundreds of church-sponsored colleges and universities could have faced a Faustian bargain: either resist the law and lose federal benefits, or amend their student codes of conduct to conform to secular values and in so doing weaken the character and autonomy of religious institutions everywhere.

Fortunately, the Maxon ruling saves the integrity of religious education and keeps judges out of the uncomfortable—and unconstitutional—role of controlling how a faith group trains its own religious leadership. But this will not be the last attempt to eliminate the unique character of religious-based education. And while court cases are important, they are also unpredictable.

That’s why we should celebrate the Maxon victory but not be carried away by it. We should also keep in mind that Maxon will likely be appealed to a circuit court that could reach a different conclusion.

If we’ve learned anything from the past few decades of jurisprudence, it’s that we cannot depend on the courts to rule favorably on religious liberty issues when legislation doesn’t stand alongside to clarify the people’s intent. Consider the Supreme Court’s record under both Chief Justices Rehnquist and Roberts: For all cases that involved only First Amendment claims and not an accompanying statute, the Court has protected religious freedom only about 50 percent of the time—and that’s going all the way back to 1987.

Given the Court’s inconsistent record on these issues over the years, we must broaden our strategy to advance the cause of religious freedom across all three branches of government. This strategy entails a continued focus on the courts, yes. But it also entails devoting more time and resources to shoring up religious liberty in two areas where it often matters most: regulations and legislation.

On the regulatory front, executive agencies play a critical role. For example, the Department of Education recently issued a rule to clarify policies related to Title IX exemptions, including what it means to be “controlled by a religious organization.” This rule provides additional clarity for judges who will be asked to weigh in on questions regarding religious organization exemptions, making it more likely that courts will rule in favor of religious protections in the future. This regulation will also provide additional guidance to businesses and educational institutions to help them better comply with the law as it relates to religious liberty.

On the legislative front, there’s a lot of work to do—and it’s time we go on the offensive. For too long, we have been playing defense against opponents of religious liberty. The House of Representatives, for example, has introduced two bills that pose a direct threat to christian organizations: the Equality Act and the Do No Harm Act (also introduced in the Senate).

As currently written, the Equality Act, which passed the House last year, would essentially gut the Title VII exemptions that protect religious employers and would impose undue burdens on religious schools. Meanwhile, the Do No Harm Act would all but neuter the Religious Freedom Restoration Act (RFRA).

RFRA passed Congress under the leadership of President Clinton with near-unanimous bipartisan support. It is arguably the most important religious freedom law of the last three decades—so important that Justice Gorsuch recently referred to it as a “super statute.” This statute is broader in nature than the First Amendment and therefore gives substantive protection to religious entities. Losing RFRA would be the biggest blow to religious freedom in years.

It’s not enough, then, to speak out against the Equality Act and the Do No Harm Act. We need viable alternatives. One such alternative is the Fairness for All Act, a bill introduced by Representative Chris Stewart that seeks to protect LGBTQ rights in employment, housing, and public accommodations while also guarding religious liberty prote

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