Dean Pete Peterson on "An 'Inverse Prop 8' for California?" | Real Clear Policy

As contentious as any measure this past session, the California Legislature passed and Governor Brown recently signed Senate Bill 1146, written by State Senator Ricardo Lara (D–Bell Gardens). The original premise of the bill was to equalize the treatment of same-sex married and transgendered students, faculty, and staff in the use of facilities on private, religious California colleges and universities who admitted students using state educational grants. The bill was amended before final passage to require certain disclosures related to the religiously-based policies for these private universities.

In the bill’s previous versions, if a California college offered married campus housing to heterosexual students or staff, they would have to do the same for same-sex married couples. Similarly, if faith-based colleges with on-campus chapels offered them to heterosexual couples for wedding services, they’d have to do the same for same-sex couples — no matter what the religious principles of the institution. 

At first glance, the original bill appears to be a logical next step in policy-making as we enter a “Post-Obergefell World” — referencing the Supreme Court decision making same-sex marriage a right. 

Clashing with this new right is the foundational constitutional First Amendment right of religious freedom. On a federal level, churches and faith-affiliated institutions have received Title IX exemptions for their hiring and access policies that are demonstrably consistent with their long-standing teachings. For many faith-based organizations, there can hardly be a longer-standing tradition of considering marriage the joining of one woman and one man.

For his part, Senator Lara appeared to discount the legitimacy and sincerity of the Religion clauses. In announcing his motivation behind writing SB 1146, the senator declared, “universities should not be able to use faith as an excuse to discriminate.” The statement raises disturbing questions for people of faith in California. 

First, regarding Senator Lara’s assertion, is religion an “excuse to discriminate” or a reason to discriminate? While the world’s great religions invite all prospective adherents, they at some point offer a choice to step into affiliation that is inherently discriminatory in what is asked only of its members. Like that old American Express tagline, “Membership has its privileges,” but particularly for people of faith, it also has its commitments.

This right to “freedom of religion” and related faith-inspired obligations have provided the basis for the world’s most deferential civil society in terms of protection of religious association. From soup kitchens to parish schools, from hospitals to adoption agencies, America has — and protected the rights of — religiously-affiliated groups and institutions.

The second question is the “Gretzky Question”: If millennia-old religious tenets practiced by California faith-based colleges and universities are merely “excuses for discrimination,” then where is this puck going? Will California’s many Catholic hospitals be ordered to provide abortifacients or abortions, or otherwise face closure for discriminating on the basis of sex? Will Catholic or Christian schools be ordered to extol same-sex marriage in their curriculum even if it violates the tenets of their faith? 

As two concerned Californians of faith, we propose here a genuinely California solution — one that is in keeping with our state’s progressive culture, our long-standing support of faith-based organizations, specifically, and the freedom to associate, more broadly. 

In light of the Obergefell ruling, states from Georgia to Utah have wrestled over the development of their own RFRAs (Religious Freedom and Restoration Acts), but by permitting individuals to discriminate — especially in the private sector — those measures provoked business community lobbying against them, citing legitimate concerns about creating discriminatory business climates.

Rather than a state RFRA, we propose an amendment to the California State Constitution that would guarantee the rights of churches and faith-based organizations to continue practicing their long-held beliefs, so long as the organization meets the Federal Title IX requirements for exemption as a religiously-affiliated organization. Doubtful that our state legislature would take up this measure, we further propose that it be considered in a genuinely California way — through the initiative process.

In effect, we are suggesting an “Inverse Prop 8” — one that seeks to protect all people of faith as they practice their beliefs in the most important way: caring for those in need, doing good works, and providing guidance in meeting life’s challenges through the principles of their faith tradition.

Wherever the puck is going, we believe most Californians can agree that the goal should be creating a new balance among religious liberty, our right to associate freely, and personal freedom. To borrow from our State Motto: We can find it.

Pete Peterson is dean of Pepperdine’s School of Public Policy, and Mario Mainero is a Professor at Chapman University’s Fowler School of Law.