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A Dissenting View Of SB1146

A reader writes:

I am choosing to email you on this as I prefer not to post publicly on blogs. That being said I will say that your recent and past posts that mention this particular Senate Bill in California have been disingenuous and borderline dishonest.

You have posted numerous comments from other internet writers, which have fear-mongered and actually made things up out of whole cloth on this bill. There was the accusation that it would prohibit religious services, which is false, there was the accusation that it would force the elimination of religious doctrine-based codes of conduct, also false, and now that Cal Grant money will be denied, also not correct.

I would suggest you actually ignore all of the internet commentary on this and go directly to the legislative analysis of the bill, which has been bouncing in and out of various committees for months and been subject to numerous revisions and reductions.

Basically, the first 2 sections require that schools receiving a Title IX exemption, must publicize that they have the exemption and the reason for it for all current and prospective students, why is being honest about how you run your organization for current and future employees and customers (students) a violation of religious liberty. Wouldn’t it be better for Biola, Azusa Pacific, or Cal Baptist to let people know where they stand as an encouragement for them to avoid the place? Seems if a gay students knows a school has a strong moral code and an exemption from Federal anti-discrimination rules due to their religious doctrine they would want to avoid it, and it would be in the schools interest to discourage those students from coming, No? It does not give the state Student Financial Aid commission the authority to withhold Cal Grants from students who are enrolled in such an institution.

The third is the interesting one. It provides the schools the opportunity to enforce their moral code of conduct, vis-a-vis gender and sexual ethics, and thus be exempted from state action provided they actually follow their code 100% of the time with 100% of their student body and staff. I.e. the schools cannot make exceptions for any reasons, or they have to make exemption for all reasons.

Cal Baptist University is a good example here. The school has a strict moral code of conduct, including sex-segregated everything, no parties, music, alcohol, etc. on campus. The school also requires twice weekly attendance at church services, and mandatory bible study (Baylor University should take a lesson from its smaller sister school in California). Our neighbors [who send their kids there] are [not Christian], but no exceptions were made for any of the rules. Under SB 1146 Cal Baptist would be protected from state action, and would not have to change its on campus or attendance and employment policies.

What surprises me in this discussion is that no one – not you, nor any of the other “out of state” individuals who think they need to have a say in the laws of the State of California – discusses the private right of action clause. So, in the scenario I described above, if a gay student were to be admitted to and attend Cal Baptist, they would need to follow the rules with no exception, and the state’s human rights commission would not interfere as long as the policies were not applied unevenly, nor would that student be prevented from spending their Cal Grant money there. However, that imaginary gay student would have the ability under this bill, should it become law, to sue the school in civil court for perceived discrimination, and while the school might be able to defend itself and win such a case, the cost of doing so would be the real challenge. The schools would have to likely carry higher insurance limits, and be more restrictive regarding admitting students, etc. They would also be subject to random and possibly frequent litigation, which would drive up tuition costs, and potentially drive away students and prospective faculty.

In my opinion, this is a far greater danger than harping on the imaginary case of Cal Grants being denied. This is also where your “beloved” SJWs can wreak havoc at such schools, and while some, like larger Catholic schools – U. San Diego, Santa Clara Un., etc. – may be willing to accommodate, other smaller schools like Loma Linda, or Point Loma Nazarene may not be, and would be at risk of being sued into submission. On a side note, the Pepperdine issue should be seen separately. Pepperdine has long quit being a religious school with a high moral standard, and has become a moderately elite business and law school with a pricy MBA program. Ironically, it was the same Ken Starr, of whitewater fame, who pushed this transition, and then moved on to create a mess at Baylor. The moral code apparently got in the way of getting MBA students and faculty, and building a Division 1 caliber athletic program. This is the same issue that we see with a lot of the Catholic universities – San Diego, Santa Clara, San Francisco, Loyal Marymount, etc. They sacrificed religiosity for elite status and sports.

Let’s come back to the Cal Grant issue for a moment. SB 1146 is currently back in the Senate Appropriations Committee. Why is it in appropriations you may wonder? Well, the Cal Grant issue is a big reason. The concern of some legislators isn’t that Cal Grants would be denied, but rather fewer students would use them at private colleges, meaning that more of them would be used at one of the 23 California State University campuses, which would cost the CSU system money in terms of lost tuition revenue. The estimate is that for each extra 450 students receiving Cal Grants at a CSU, it costs the state $100,000. This cost would be higher should the extra Cal Grant money flow to one of the 10 UC campuses, as tuition there is much higher. So it is in the states interest to make sure a good portion of those Cal Grant dollars go to private schools. The other issue, of course, is that if those students, who might be admitted to a private religious school (which often have higher admission standards that CSU) would instead choose a CSU campus, because of the Cal Grant (which is a need-based program), they would push a certain number of students out of CSU and into local community colleges, which in turn might restrict access for some students to those schools.

This is not a small issue, and makes up one of the major points in the legislative analysis in the committee discussions of the bill. As such it is one of the reasons that the bill continues to bounce around between the various committees. It still hasn’t been brought to the Assembly. This doesn’t mean that the current pack of politicians in Sacramento won’t eventually send the bill to Jerry Brown, but it is a big reason why the bill has taken so long and been revised so many times.

Given the financial implication I doubt that Cal Grants would be denied, it is easier to sell this bill if there is no financial burden to the state, which it would have if the Cal Grant money were to leave schools like Cal Baptist. In fact, I would see that should the state bar Cal Grant money from religious schools, this would likely be a First Amendment violation, as this would amount to government discrimination on the basis of religious belief, which would be actionable in Federal courts. I doubt the State wants that headache.

As stated before, given the litigiousness of society, I see the private right of action clause to be far more concerning, and I am surprised you haven’t looked at that aspect of it. Granted when private individuals and private organizations go to court against each other, it is difficult to wave the religious liberty banner, as the constitutional protections are not against other people, but against government action. If I remember correctly, the private right to action clause in the Indiana RFRA that cause a significant portion of the business community opposition to that bill and which ultimately had to be removed. Such a clause would create a near chaotic environment.

This bill is more an example of how legislators pander to, and “reward” their donors with ridiculous laws in order to make it look like they are doing something. Trust me, the Californian legislature does this crap all of the time, and the bulk of these bills never make it to the governor’s desk. Should it become law, which is still up in the air, as there is a good chance it will languish until the end of the year, in which case it would be permanently tabled and have to be restarted in the new, post-election, legislative session starting in January. There is a good chance that it may not happen, as Lara has already fulfilled his duty to his supporters.

I thank the reader for his letter. Comments, the rest of you? Does this reader have a point?

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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