The key battleground for the federal government’s twenty-first-century assault on religious freedom may be Catholic education—in particular, those faithful Catholic institutions that refuse to surrender and remain committed to Christ and His teachings as they come to us through the Church.
On Tuesday, Solicitor General Donald Verrilli, Jr., told the Supreme Court that religious colleges could lose their tax exemption and suffer other penalties if the Court redefines marriage.
Certainly this could affect Evangelical Christian, Mormon and other religious colleges, as well as all religious apostolates that adhere to the natural definition of marriage. But Catholic education especially has been targeted by LGBT activists, from within and without. Consider the controversy in San Francisco over Archbishop Salvatore Cordileone’s expectations for teachers, as well as the refusal of even many conservative Republicans in Congress to protect Catholic schools from a Washington, D.C., law that could force them to sponsor clubs that advocate marriage rights for homosexual couples.
It was long before the Supreme Court took up the redefinition of marriage—and even before the Obama administration announced its “HHS mandate” for employee insurance coverage of sterilization, contraception and abortifacients—that Catholic education was under fire.
Six years ago, the Equal Employment Opportunity Commission (EEOC) ordered Belmont Abbey College in North Carolina to cover contraception in its employee health plan. And the National Labor Relations Board (NLRB) has sought to coerce religious colleges—especially Catholic colleges—to accept its oversight despite a Supreme Court ruling in 1979 that such entanglement with religious education violates the First Amendment.
Faithful Catholic educators have forcefully opposed the HHS mandate. The first lawsuit against the mandate was filed by Belmont Abbey College in 2011, and others have sued including Aquinas College, Ave Maria University, Catholic University of America, Franciscan University of Steubenville and Thomas Aquinas College, as well as several Catholic schools and dioceses.
But now the redefinition of marriage threatens to undue Catholic education entirely, at least where Catholic schools hold to Catholic beliefs without compromise.
During Tuesday’s oral argument before the Supreme Court, Chief Justice John Roberts asked Verrilli, “Would a religious school that has married housing be required to afford such housing to same-sex couples?”
Verrilli tried to argue that, although the Obama administration wants a federal redefinition of marriage, it would be left to the states to decide such thorny issues:
…that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there’s going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could—well, you know, different states could strike different balances.
But the Chief Justice didn’t let him get away with that:
ROBERTS: What about Federal? It’s a Federal question if we make it a matter of constitutional law.
VERRILLI: But the question of what—how States use their enforcement power is up to the States.
ROBERTS: Well, you have enforcement power, too.
VERRILLI: Right. And—and—well, that’s certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that’s where those issues are going to have to be worked out.
Verrilli was being devious, and surely the Court could see that. No one doubts that a Supreme Court ruling changing the federal definition of marriage would be followed by extensive changes to America’s nondiscrimination laws, and so Chief Justice Roberts had it exactly right.
Most religious colleges are able to compete with state-funded institutions and other private colleges by participating in federal student aid programs, but increasingly there are concerns that a ruling against traditional marriage could force religious colleges out of these programs. Just this month, Wyoming Catholic College announced that it would forego participation in the federal aid programs to protect its Catholic identity from potential coercion. Christendom College in Front Royal, Virginia—as well as non-Catholic colleges like Grove City College and Hillsdale College—also reject government assistance.
How could a change in marriage law affect a college that supports traditional marriage? For one thing, accreditation by a federally recognized agency is required for participation in student aid programs and often for acceptance of credits by other institutions. Accreditors could push out religious colleges for perceived discrimination, regardless of federal law.
And federal student aid could be directly affected by any ruling that finds justification for same-sex marriage under the 14th Amendment, if it leads to changes in federal nondiscrimination laws. In the 1984 case Grove City College v. Bell, the Supreme Court extended the reach of federal law to any college participating in the student aid programs. For instance, Title IX of the U.S. Education Amendments of 1972 gives the federal government substantial enforcement powers over America’s schools and colleges with regard to sex discrimination. Colleges must submit to extensive reporting requirements, continuous review of the parity of their athletics programs for men and women, and lately the increased scrutiny of the Obama administration into college policies related to sexual assault and “transgendered” students.
Federal nondiscrimination laws also can apply to Catholic elementary and secondary schools, if they accept a substantial amount of government aid—such as for school lunches or technology.
Aside from federal aid, Justice Samuel Alito on Tuesday forced Verrilli to acknowledge the danger to religious organizations’ tax-exempt status. Noting the 1983 Supreme Court ruling against Bob Jones University for refusing on religious grounds to acknowledge interracial marriage—which the Court said was a violation of federal law despite First Amendment protections for religious freedom—Alito asked if a college should lose its nonprofit tax exemption for refusing to accommodate same-sex marriage.
Verrilli conceded, “You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”
Then there is the EEOC, led by Georgetown University law professor Chai Feldblum, who has strongly advocated sexual liberties that trump religious freedom concerns. The EEOC has never responded to Belmont Abbey College’s appeal of the agency’s ruling requiring the College to cover contraceptives in its employee health plan, which leaves the agency the option to resurrect its charges should the Supreme Court exempt religious nonprofits from the “HHS mandate.” With regard to marriage, it indicates the extent to which the EEOC is willing to disregard religious concerns. An adverse EEOC ruling can lead to lawsuits, which can put an organization out of business.
The recent cowardice in Indiana—not only on the part of Governor Mike Pence and his compromise on the state’s Religious Freedom Restoration Act, but also the silence from Catholic institutions including the University of Notre Dame in defense of their own religious freedom—demonstrates how great the danger may be for faithful Catholic educators and all Catholic apostolates. The ability to teach and live the Catholic faith could be severely tested.