The latest big news about the church is the decision by the Boy Scouts of America (BSA) to allow adults in same-sex relationships to serve as leaders and work as employees, and the church’s reaction to it. The Washington Post channeled the online dissident-Mormon community, theorizing that the church is shooting from the hip, and was blindsided by the BSA vote or spooked by Obergefell. Surely, critics think, the church will eventually calm the heck down, recognize that the BSA vote is exactly the compromise the church asked for, and stay the course.
I think this is wrong. There are very good reasons for the church to be concerned about the BSA’s action, even if in the recent past they’ve said this compromise would be acceptable. Things are different now.
Post-Obergefell, the legal climate is transforming at incredible speed. Here are several developing legal trends that threaten religious liberty, beyond the threats I’ve already discussed:
- The federal Equal Employment Opportunity Commission (EEOC) decided, despite decades of settled law saying otherwise, that Title VII of the Civil Rights Act covers sexual orientation as well as sex, meaning that employers cannot refuse to hire someone because she or he is gay. Title VII doesn’t fully apply to church employers, but it does apply in some situations and the government is clearly eager to broaden its scope. I think we’ll soon see lawsuits, featuring sympathetic plaintiffs, designed to threaten or force churches to hire individuals in same-sex relationships.[i]
- A proposed law would further entrench the EEOC’s inappropriate decision. The Equality Act, currently under consideration by Congress, would prohibit any discrimination based on sexual orientation and gender identity in all federal law–it would make sexual orientation and gender identity identical to race, legally. Though LGBT individuals should be granted more legal protection than they currently have, the blanket sweep of the Equality Act would generate enormous problems for churches and religious individuals who object to homosexual sex and same-sex marriage. It would even decimate the federal Religious Freedom Restoration Act by removing its protection from individuals who believe marriage is between a man and a woman.
- It is perfectly legal and expected, but still important to recognize, that the legal fight against religious liberty is well-organized, driven, and lavishly funded by business and other society leaders. A recent gathering of LGBT advocates stated the goal of shutting down legal protection for religious objectors within three years. These lawsuits aren’t happenstance. They’re a coordinated campaign that we must counter.
- Even the United States Solicitor General (the country’s top lawyer), when asked by Supreme Court justices if legalizing same-sex marriage in Obergefell would put religious schools’ tax exemptions at risk, was straightforward when most lawyers would have been coy. He said it’s “certainly going to be an issue.” Top officials like him don’t guess about prominent issues like that; he knows the issue will be pressed in court, and soon.
- If the Equality Act passes, or even if it doesn’t, legal pressure against religious universities will escalate. A federal law, Title IX, prohibits schools from discriminating on the basis of sex. The Department of Education has expanded the law to mean not just sex, but also sexual orientation and gender identity. Lawsuits will attempt to force BYU and other religious colleges to accept and house married same-sex couples. Title IX is already being used to pressure religious schools.
- Courts are ignoring what legal protections for religious liberty are still in place, a trend I expect to continue. The 10th Circuit just badly mis-applied the Hobby Lobby case in ruling against the Little Sisters of the Poor, basically saying it doesn’t care what the nuns say about their own religious beliefs; they shouldn’t find the contraception mandate (and the feeble “accommodation” offered to them) objectionable, and that’s that. Even when religious liberty wins big victories–last year’s Hobby Lobby decision was certainly that–it ends up not mattering in the long run.
Activists with the zeitgeist at their backs don’t consider existing law an obstacle to further legal pressure. An LGBT rights lawyer said candidly, “There will be a period of time where [churches will] have some legal protection, but that doesn’t mean the lawsuits won’t keep coming.”
The BSA has already won the fight to choose its leaders according to its values. It won the Dale case before the Supreme Court fifteen years ago. Yet BSA is caving now, not out of wholehearted agreement with the emotional appeals of the gay rights movement, but out of desire to avoid the expensive legal fight that would force them to accept leaders in same-sex relationships within a few years[ii]. Why can’t they count on Dale for protection? Because Obergefell and the other trends bearing down on religious liberty and freedom of association have changed everything. Dale would not be decided in the BSA’s favor today.
The church will do whatever it takes legally to preserve its rights, obviously.[iii] And it may decide it’s worth it to stick with the BSA. But if it doesn’t, it might because of the need to avoid actions that could support its adversaries’ arguments. If the church sticks with the BSA now, a sentence like the following will show up in a future court decision constricting the church’s rights: “The church’s purported theological concerns about hiring/marrying/appointing/conferring good standing upon/ordaining individuals in same-sex marriages is mere pretense in light of the church’s willingness to remain part of an organization (the BSA) that allows such individuals to serve without causing any ill effects to the church.” It is unpleasant to not be able to compromise and have to think in terms of coming legal threats instead of good faith discussions, but in this legal climate there’s no choice.
We now live in an America that does not allow a private organization to select its own members on the basis of its own values regarding sexuality. It’s really astonishing how quickly things are moving, and the unthinkable becoming the already-settled. There’s no guarantee we won’t face terrible restrictions on our religious freedom, but I trust church leaders to do all that is possible to prevent them. We all need to speak up in support of our religion and freedom, in support of the church’s decisions, and invite others to join us in this fight.
[i] We currently have protection from Corporation of the Presiding Bishopric v. Amos and Hosanna-Tabor, but I don’t like their chances if challenged in our post-Obergefell climate. And at least some targeted churches or other religious groups will buckle rather than press their case all the way to another Supreme Court showdown, especially since more and stronger arguments can be made against them with Obergefell.
[ii] “The president of the Boy Scouts of America, Robert Gates, said [in May 2015] that the organization’s longstanding ban on participation by openly gay adults is no longer sustainable and called for change in order to prevent ‘the end of us as a national movement.’ https://www.trivalleycentral.com/casa_grande_dispatch/national_news/boy-scouts-of-america-organization-s-leader-says-ban-on/article_93180586-0096-11e5-b8fc-e74a680fbe4a.html
[iii] Obvious to me, I mean. I don’t have the slightest contact with, association with, or insight into the thinking of anyone who makes these kinds of decisions for the church.