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​Proposed CA law raises questions about line between exercising religious freedom and discrimination

Supporters of gay marriage rally on the steps of the State Capitol November 22, 2008 in Sacramento.
Supporters of gay marriage rally on the steps of the State Capitol November 22, 2008 in Sacramento.
Max Whittaker/Getty Images

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A bill making its way through the California legislature is shining a light on the struggle between religious freedom and LGBT rights on the campuses of religious colleges and universities in California.

SB1146 would get rid of an exemption that has allowed religious institutions to be free from state anti-discrimination laws and to ask for exemption from federal Title IX laws.

Currently, religious colleges and universities are allowed to designate housing assignments based on sex, not gender identity, and to discipline students who violate school conduct policies involving sexuality. The new law would allow students to sue educational institutions who deny them housing based on gender identity or sexuality and require that any religious institution receiving state or federal exemptions to anti-discrimination laws disclose that exemption to current students and those who might attend in the future.

Officials at California’s religious colleges and universities argue that the bill is a direct attack on their ability to exercise religious freedom, and that the elimination of the exemption could also prevent them from accessing CalGrant money that the state gives to low-income students.

Should religious educational institutions be allowed to continue receiving exemptions from state and federal anti-discrimination laws? What would the impact be on the schools’ ability to obtain funding from state and federal government? How far does/should the protection of religious freedom extend when it comes to religious colleges and universities?


Jo Michael, Legislative Manager, Equality California - an advocacy group focused on LGBTQ rights; Sponsors of SB 1146

Darren Guerra, Associate Professor of Political Science - with a scholarly focus on American Politics, Constitutional Law, and Public Policy, Biola University


Some religious schools have these statements of faith for students, which can include abstaining from sex during their time there. Is there any problem with schools continuing those kinds of statements of faith under this legislation? 

Jo Michael: The intent of this legislation ... is to address discrimination that students face at these religious institutions. It's not about policies applied equally regardless of whether a student is LGBT or not LGBT. The question is when there is a policy used to discriminate against a student on the basis of their sexual orientation or their gender identity – for example, if there's a policy against gay students and presumably lesbian students engaging in sexual activity or even dating and there is NOT a policy against students of different sexes dating. When there's that kind of disparate impact that is just based on somebody's sexual orientation or gender identity – really just discriminating against students based on who they are – that's what we're concerned about and that's what the bill addresses. 

What about transgender rights if you have a school that believes gender is fixed? For example, if a transgender student identifies as a gender other than his or her anatomy, do you think the school doesn't have a right to say "no, your anatomy is male or female, so you need to be in the dorm housing that goes along with that?"

JM: That becomes a significant issue. California's existing non-discrimination law states that people need to be respected according to their gender identity and the way that they are living in the world. There's not room for the kind of discrimination that really targets somebody based on that deeply held aspect of who they are. If you have a student who's transgender, and is simply asking to be accommodated in the way that other students are – to be able to be housed according to their gender identity – that's something that the California non-discrimination law is already very clear about. There really should be no difference in how that student is treated, whether they're going to a private religious school or a public school in California. 

Professor Guerra, what would be the effect of this bill, if it passes, on Biola?

Darren Guerra: It would limit the academic freedom of our students to choose where they want to go to school, it would limit our religious freedom to express our faith traditions whether Catholic, Jewish, Protestant or other and to have learning communities that express our faith the way this faith has been handed down for thousands of years. It would expose us to frivolous lawsuits from anyone who might take offense for whatever reason to our faith traditions. It would disproportionately impact, at least on our campus and others, minority students who receive Cal Grants and who are increasingly taking the opportunity to avail themselves of our education at our institution. 

What percentage of your students are Cal Grant recipients?

DG: At our school, we have 879 Cal Grant recipients – 37 percent of those are Latino, 25 percent are Asian, 3 percent are African-American and 30 percent are white.

It's a significant percentage of your student population. Does this apply to federal funding at all?

DG: At this point, SB 1146 would only apply to state funding, but as we all know what starts in California rarely stays in California, and if successful here, I can easily see these types of measures at other states and at the federal level. 

Does the statement of faith for incoming Biola students address sexuality?

DG: Yes. As you know, faith traditions have codes of conduct regarding sexuality. We believe that the key to human flourishing is engaging in moderation in the area of sexuality. All students, gay or straight, have to sign on to a code of conduct before they come here. One might ask why would students sign on to this code of conduct, and I think students gay and straight believe that a faith-based community has some insights into the true, the good and the beautiful, and they want to experience that.  They want to learn in an environment that encourages moderation in these areas and encourages them to see themselves as more than sexual beings, but at whole persons who can flourish in many ways.

These interviews have been edited for clarity. You can listen to the full segment by clicking the blue play button above.