Schools in Legal Holding Pattern
As students return to pursue Christian higher education this term, it remains to be seen whether this summer's Supreme Court's ruling legalizing same-sex marriage nationwide will impact campuses.
The primary issue at hand is whether Christian institutions that have provided married student housing or benefits to married faculty and staff in the past will be forced to do the same for wedded gays and lesbians in the future.
So far there have been no government directives. However, it likely is only a matter of time before a same-sex couple denied campus housing together will sue a Christian school.
Down the road, the potential fallout for schools that refuse such accommodation could be the loss of tax exemption.
However, Marilyn Abplanalp, president of Alliance for Assemblies of God Higher Education, is encouraged by a brief section in Justice Anthony M. Kennedy's majority opinion of Obergefell v. Hodges that seems to uphold religious objections to same-sex marriage by educational institutions.
"At the moment we are in a holding pattern," Abplanalp says. "But the court decision expresses support for the religious liberties and freedom of speech of those who oppose same-sex marriage."
Nevertheless, in preparation of the federal government invoking same-sex mandates, Abplanalp says AG universities are investigating the possibility of seeking exemptions to Title IX requirements that declare no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."
In the past, Abplanalp says, Christian schools have been granted exemptions to Title IX rules in certain areas by basing arguments that the Bible is the standard for behavior.
"All our schools have rules against sexual relations outside marriage," Abplanalp says.
At this point, Council of Christian Colleges and Universities (CCCU) President Shirley V. Hoogstra, calls the possibility of evangelical schools being forced to implement same-sex housing and being required to extend other spousal benefits to gay people as "speculative, but not out of the realm of possibility."
Joshua D. Hawley, associate professor at the University of Missouri School of Law, notes that the federal government also could begin interpreting Title VII of the Civil Rights Act and related antidiscrimination statues (such as the Fair Housing Act) to mandate accommodation of same-sex couples. Likewise, state agencies or officials might interpret state laws in the same way, he says.
"This is why new and specific laws that protect individuals, churches, charities, and ministries from adverse action for following church teaching on marriage is vitally necessary," Hawley says.
Before that happens, with same-sex marriage as the new law of the land, some universities have amended student manuals to reflect language indicating only heterosexual marriage is permissible.
By law, college applications cannot ask about a prospective student's sexual orientation. However, Abplanalp says as part of the application process at all 16 AG schools in the U.S., students must read through and consent to behavior contracts, agreeing to abide by policies that sexual behavior outside heterosexual marriage is forbidden.
Hoogstra, who is also an attorney, agrees that Christian universities need to carefully review all policies connected with the issue.
"Schools can ensure that their policies on sexuality and sexual behavior are in alignment with their mission," Hoogstra says. "These could be housing, employment, student handbook, or facility use policies."
Hawley recommends that schools take such actions as soon as possible.
"Christian colleges and universities should make very clear what their teaching on marriage is, and how it relates to the Bible and church doctrine," Hawley says. "It has always been good practice to require staff members to assent and adhere to a mission statement or statement of faith. Christian schools should make certain their mission or faith statement is very clear on marriage and sexual ethics. And schools must apply any code of conduct fairly and consistently."
If federal government agencies demand that Christian educational institutions provide housing for same-sex couples it might result in those schools doing away with any option for married housing, Abplanalp says.
In testimony last month before the U.S. Senate Judiciary Oversight Subcommittee, IRS Commissioner John Koskinen vowed there would be no policy change in revoking the tax-exempt status of religious organizations opposed to same-sex marriage. Any such move would be preceded by a lengthy period for public comment, Koskinen said.
Losing government funding would be a death knell for many Christian schools, Abplanalp says. She notes that at least 90 percent of income at most AG universities is tuition driven, and that includes a chunk of federal Pell grants and Stafford loans. It would be difficult for an institution to survive without such monies, Abplanalp says. Donors also wouldn't be allowed to claim tax deductions for contributions made to schools that have lost tax-exempt status.
Hawley says Christian schools could try to raise a defense based on state or federal Religious Freedom Restoration Acts, but again, more specific legal protection is urgently needed.
Meanwhile, the Supreme Court decision has created a rift in a few of the 120 campus members of the CCCU.
In the wake of Obergefell v. Hodges, two schools belonging to the CCCU members -- Eastern Mennonite University (EMU) and Goshen College -- announced policy changes permitting same-sex marriage among faculty and staff. When the CCCU didn't immediately boot the two Mennonite schools, Union University, a Southern Baptist school in Jackson, Tennessee, quit the organization; two other schools are considering withdrawing from CCCU membership. The CCCU will discuss the membership status of EMU and Goshen in a Sept. 21 meeting. A total of 35 denominations are represented in the CCCU.
Leaders of the group have been busy consulting with college presidents about the matter, with Hoogstra concluding, "the vast majority of these member schools hold to a historic, orthodox understanding of marriage between a man and a woman." Hoogstra anticipates no further defections over the issue during the board's process of reaching out to member schools for feedback regarding the two schools that switched to liberated sexual standards.
The CCCU also has met with representatives from 20 congressional offices about the impact of the Supreme Court ruling and will sponsor a webinar Thursday hosted by the Christian Legal Society in which panelists will provide religious liberty guidance to Christian schools.
Seven AG universities -- Evangel, North Central, Northwest, Southeastern, Southwestern Assemblies of God, University of Valley Forge, and Vanguard University of Southern California -- are CCCU members. Abplanalp says leaders of these AG schools will wait until after the Sept. 21 meeting to determine future action regarding membership.