Last week, a superior court in the province of Ontario upheld a decision allowing the Law Society of Upper Canada to deny accreditation to a Christian law school, on the grounds that its Community Covenant, which requires abstention from sex outside (husband-wife) marriage, is a violation of the rights of gay and lesbian students. Trinity Western University, the third oldest university in British Columbia, has found little sympathy among the Canadian public and political class, and is unlikely to win any future legal appeals. The school’s administration has signalled that, if forced, it will cancel the opening of the law school rather than alter the Community Covenant.
While the decision applies to an ecumenical Christian institution in Canada, the significance for American Mormons is straightforward: the sexual standards in the Honor Code at Brigham Young University are virtually identical to those in Trinity Western’s Community Covenant. Is it possible, a Latter-day Saint might reasonably wonder, that in a decade or so BYU will find its own accreditation threatened amidst the legal aftershocks of same-sex marriage?
In the balance of considerations that can be weighed while guessing the likelihood of a threat to BYU’s accreditation (or tax-exempt status), there’s a major one on the side of optimism: the fact that of any country in the world, the United States has the most robust tradition of religious liberty. As a result, the Canadian decision on TWU is not necessarily a ten-year warning bell for BYU. But there are other facts to consider:
- The Canadian decision did acknowledge the religious liberty interest of the university in establishing religious standards as a way of promoting the “collective practice” of Protestant Christianity. Its decision was simply that the sexual liberty of gay and lesbian students—framed in the decision as non-discrimination—was more important.
- Similar reasoning is being used more and more often in US decisions. So far it has only been applied to religious individuals and businesses. The line between religious businesses and schools has been blurred before in discrimination cases, however, as when the Supreme Court stripped Bob Jones University of its tax-exempt status in 1983.
- Conservatives in Canada in 2005 were assured that legal same-sex marriage would not lead to religious liberty conflicts, so present assurances that US law won’t allow threats to accreditation are hard to interpret as permanent.
- Accreditation is granted by quasi-private bodies. The council that accredits BYU acts under the regulatory authority of the Department of Education, but is probably not bound as strictly by the First Amendment as a government actor would be.
- As of last month, marriage to someone of the same sex is a fundamental constitutional right in the United States, and the weights of jurisprudence are likely to shift as a result. It’s unclear whether the First Amendment automatically beats the Fourteenth in conflict, especially as the cultural climate becomes more secular by the year.
When confronted with these kinds of scenarios, there are two canonical (and contradictory) responses among Mormons who support same-sex marriage: denial and approval. Rod Dreher, in a more generally Christian context, named the phenomenon:
The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”
While Dreher’s point is made partly for snark’s sake, it should hit close to home in the online Mormon world. More than that, the point matters quite a bit, because the way that American Mormons approach the question of religious freedom could affect the ability of institutions like BYU to operate freely in the coming years and decades.
In April, Elder Hales, speaking at General Conference, left little room for either half of Dreher’s law. In response to those who deny that the space for religious exercise is shrinking:
The general lack of respect for religious viewpoints is quickly devolving into social and political intolerance for religious people and institutions.
As we face increased pressure to bow to secular standards, forfeit our religious liberties, and compromise our agency, consider what the Book of Mormon teaches about our responsibilities.
And to those who don’t mind the encroachment, he insists that it is the duty of Latter-day Saints to push back:
Brothers and sisters, we are responsible to safeguard these sacred freedoms and rights for ourselves and our posterity. …
[I]n your individual capacity, join with others who share our commitment to religious freedom. Work side by side to protect religious freedom.
This is the same narrative that church leaders have been telling at least since 1995, when The Family: A Proclamation to the World was announced in General Conference.
It’s worth acknowledging that, for more skeptical listeners, this language can come across hyperbolic. After all, it’s true that we are manifestly free from fear of persecution in our daily lives as Mormons, at least in most countries where members live. But it’s not enough to point out, as is so often pointed out, that the chance of clergy being forced to perform same-sex ceremonies is remote. This is the most obvious hypothetical conflict of same-sex marriage and religious liberty to come to mind, and maybe the subject of the shrillest paranoia from some members. But it would be a mistake to let it obscure the many realistic ways that the scope of religious exercise could be threatened in the coming years. Among these, the institutional marginalization of BYU is one possibility. Threats to religious tax exemptions could be next in line.
The reason, I think, for denial of the danger on the one hand and apathy on the other is a misunderstanding of what same-sex marriage really means. The degendering of marriage must eventually affect everyone because it both represents and affirms a novel worldview, one in which men and women are interchangeable, human relationships are ordered toward sex and the individual’s identity is authoritative in legal matters. Same-sex marriage lies along the road that was paved by no-fault divorce, premarital sex and legal elective abortion, and other signposts are now appearing ahead.
But regardless of whether we accept this characterization, we will likely soon be forced to accept that some of our liberties are at stake. The cultural and legal space we find ourselves occupying will be no bigger than what we decide now to claim.