Published on April 17, 2021
And then, they came for the Christian colleges. LGBT activists have launched a lawsuit seeking to deny federal funding to Christian colleges and universities that require students and staff to live according to Christian sexual teaching. In response, the Biden administration’s Department of Education, the ostensible defendant in the suit, may try for a quick “sue and settle” surrender to cut traditional religious colleges off from federal education dollars.
The legacy media has, of course, been sympathetic to the litigants, cheering what they see as the end of exemptions that let “anti-LGBT bigots” receive government funds. They view religious accommodations as antithetical to the rule of law — special privileges that allow believers to ignore the law. But religious accommodations are the price liberalism must pay for big government. The current lawsuit illustrates this truth.
First, the sexual orientation and gender identity non-discrimination regulations that religious colleges have sought exemptions from are not statutory laws. Rather, they are interpretations and rules created by bureaucrats and judges — not Congress — through successive rounds of regulation and litigation. They arise from the expanding administrative state, which regularly grants accommodations and exceptions for a multitude of reasons.
Indeed, the law at issue, Title IX, explicitly permits religious colleges and universities to retain their religious character while receiving federal funding. Thus, rather than unique exceptions to the rule of law, the exemptions granted to religious colleges and universities are the ordinary products of an expansive government responding to diverse circumstances.
This sort of legal and administrative discretion is important to effective government. Even the ever-growing Leviathan must retain some flexibility, and such elasticity is indispensable to big-government liberalism — at least if it is to remain liberal.
The promise of liberalism is that all are welcome in the liberal polity, and that sectarian conflict can be set aside within a common political framework. This promise has always been imperfectly realized, but the liberal claim is that it is not a joke for a priest, a rabbi, and a Buddhist monk to walk into a bar, or a courthouse, or a public university, as equal citizens.
The promise of everyone having a place in liberalism, however, means allowing associations in which not everyone has a place. To maintain their integrity and identity, religious communities and institutions must be able to exclude those who do not accept their beliefs or adhere to their rules.
Christian colleges and universities that seek to be communities of discipleship, as well as of mundane instruction, will necessarily insist that students and faculty try to live by Christian ethics, including sexual ethics. These restrain everyone, but concerning LGBT identities and actions, Christians believe that our essential identity is built on our relationship to Jesus Christ, not our sexual desires. It is rebellion to make temptation into an identity.
The obvious rejoinder, as illustrated by the current lawsuit, is that fomenting Christian identities should not be done with government funds. If orthodox Christians wish to run their colleges as they see fit, they should do so without taking federal money. There are several problems with this argument.
First, although a few Christian schools are proudly independent of federal funds, most are not, and would struggle to survive if suddenly cut off from them. While Christians have indeed built their own colleges, “build your own” is much harder when the government funds and controls everything, either directly or through extensive regulation. Many schools have a reliance interest on the promise that they would be able to access federal dollars without compromising their religious identity.
Second, when the government is a primary source of funding for higher education, requiring traditional religious schools to alter their beliefs to access it is a de facto punishment for their religious beliefs. To exclude these religious institutions for their authentic faith is to exclude religious citizens from liberalism’s promise of equality.
Third, it is naïve to think that avoiding federal dollars means avoiding federal interference. Federal funding isn’t why Jack Phillips and the Little Sisters of the Poor have been dragged into court again and again.
Eschewing government money might free Christian colleges from some intrusions under Title IX, but they will still be subject to other regulations by various governmental and quasi-governmental actors, from accreditors to athletic associations, which do not depend on accepting grants. For example, declining federal funds will not protect them from transgender mandates under Obamacare or the Bostock interpretation of Title VII.
By nature, big government imperils the liberal truce, in which citizens and institutions of disparate religious and metaphysical beliefs can live together in peace. The bigger the government, the more likely it is to impose or infringe upon the deeply held convictions of religious citizens and associations. Just as government-run health care will become entangled with religious hospitals, doctors, and nurses that refuse, for example, to commit abortions, government-funded higher education will become entangled with religious colleges that require students and faculty to adhere to religious beliefs and practices.
This problem is exacerbated because the presuppositions that underlay fashionable secular dogmas are often invisible to their adherents. For example, the claims of transgender ideology are not less metaphysical, or even mystical, for having been inculcated by the cultural osmosis of media saturation and peer pressure, rather than overt religious instruction and reflection. To insist that a man may become a woman, or that a man is, in some sense truer than biological sex, already a woman, is as bold a metaphysical assertion as anything proclaimed in religious teachings such as the Catholic doctrine of transubstantiation.
Government enforcement of secular dogmas — e.g. by withholding otherwise-available funding from religious schools that do not accept claims of gender identity in place of biological sex — establishes an official orthodoxy. Under this regime, traditional religious believers and institutions will be systematically punished and excluded from equal participation in education, healthcare, and even from the market in general.
Even if the current lawsuit fails (full disclosure: my wife is an attorney with Alliance Defending Freedom, which is intervening on behalf of some of the colleges targeted by this lawsuit), there is still a powerful trend toward punishing religious believers and institutions that resist the sexual revolution.
Furthermore, the attacks on Christian institutions are accompanied by efforts to make participation in public, professional, and commercial life contingent on affirming ideas incompatible with traditional Christian teachings. Thus, believers may be pushed out of mainstream institutions even as our institutions are isolated and cut off from benefits that are available to everyone else.
This prospect may delight activists eager to punish those who do not embrace the latest demands of the LGBT lobby. But a regime that penalizes Christians who authentically live according to their beliefs is illiberal by definition, and thereby, by liberalism’s own standards, in danger of illegitimacy.
A more limited government would, of course, resolve many of these difficulties. But left-liberals must at least recognize that sustaining the bargain of liberalism in a time of big government and ascendant cultural leftism requires generous accommodations for traditional religious believers and their institutions. Without equality and tolerance for dissidents, both individually and within the community, there is no liberalism.
Nathanael Blake is a senior contributor to The Federalist and a postdoctoral fellow at the Ethics and Public Policy Center.