Are religious schools like BYU at risk of losing accreditation over same-sex marriage?

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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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

Polyamory: Where Will Modern Morality Lead Us?

Three rings representing a polyamorous relationship.This weekend in Vancouver, B.C. is the first national conference of the Canadian Polyamory Advocacy Association, a relatively new organization that aims to represent the interests of people involved in “poly” relationships, relationships of three or more individuals. According to the group, there are thousands of polyamorous people in Canada, most of them apparently unconnected to polygamist religious groups.

Since 2011, when a superior court ruling confirmed the legality of polyamorous relationships, the conversation surrounding polyamory has grown, and it is now large enough to attract the attention of major newspapers, as well as 13,000+ users who follow a polyamory board on social news site Reddit. It is on the verge of turning political. The CPAA’s director, Zoe Duff, who is in a relationship with two men, says that marriage hasn’t been much of a concern for polyamorous people, but says “as a long term thing, I can see a desire to have the right to marry.”

Somehow it isn’t very surprising that the marriage discussion is moving to this point. We’ve become accustomed to the language of modern egalitarian individualism and the challenge it presents to traditional norms surrounding sex and marriage. From the mid-1960s to early 1970s, public opinion on pre-marital sex reversed. The last few decades have seen homosexuality (and other sexual ideas) become recognized as a legitimate part of human identity.

The consistent message of those at the vanguard of these transitions is in itself nothing new. The message is, why not let people do something if it isn’t particularly harmful? Naturally we aren’t overly surprised when we find that these values, carried to their logical conclusions, suggest that polyamory is as legitimate as anything else, and perhaps should be recognized as a part of marriage. This is certainly the language used by the CPAA:

We are the poly majority: modern, secular, egalitarian polyamory. …

That means women or men can have more than one partner… if everybody involved agrees it’s best for them. That’s not empty theory; we live all gender combinations. …

Our relationships are custom-made by those in them, without preset roles. We don’t just choose freely; we define the choices. …

We are NICE: negotiated, individualized, consensual, and egalitarian.

The excerpt above doesn’t appeal to any values that are unfamiliar, or say anything that would be out of place in a Canadian university. Who would disagree that people should choose freely what’s best for them? Who doesn’t like those “NICE” values? But surely, you’re thinking, things aren’t so simple. Surely there is some good reason our society hasn’t embraced polyamory. There is (and it isn’t the supposed tax issues created by polygamy).

Some have made a science out of identifying and attacking old norms that violate the new social orthodoxy. But humanity, and in particular human morality and social activity, is not reducible to the freely chosen actions of utility-maximizing individuals. That is to say, marriage is not simply two (or more) people entering into a contract, and sex is not simply individuals freely seeking individual fulfillment. This sort of thinking is totally academic; it is a model of humanity that offers conveniently the simplifications that intellectuals seek, and thus lends itself well to reasoning (i.e. “Individuals have freedom, therefore they ought to be able to commit to multiple people as long as it is consensual”).

The model, however, is broken, despite the narrow truths it contains. Whether you view humanity as the work of a magnificent God, or else as the result of millennia of biological adjustments, or both, it is impossible to imagine that things are so simple. The nuances created by such awesome forces will inevitably refuse to be contained by anything simplistic. Morality is not summarized in a maxim.

To be specific again for a moment, there is good reason for the taboo surrounding polyamory. And to be emphatically old-fashioned, I tend to think that polyamory represents an indulgent attitude toward sex, is a poor environment in which to raise children, and is, regardless of any consensual considerations, almost totally incompatible with the kind of love that ought to exist between a married couple. As a result of the experience and wisdom you’ve collected over the years you’ve been alive, you probably agree with these statements. But these kinds of statements won’t be popular with theorists–they’re more difficult to prove than moral generalities are to assert. But when it comes to living life in the real world, we make our decisions more on the basis of our intuition and core values, however ineffable, than we do on the apparently self-evident principles of hyper-rationalist thought.

The reason I can say what I’ve said in this entry is that I’ve entered the debate early. There’s a good chance that a decade or two from now these words will be bigoted or ignorant or even “polyphobic”–who knows. I may end up on the wrong side of history (in the way that Bill Clinton regrets signing DOMA in 1996). But there’s also a chance that the modern open mind will expand to contain the things it cannot quite understand, but is still pretty sure about–that it will not surrender to the intellectual trap of pleasing certainties–that every wind of social doctrine will not carry it too far away.

Let me know in the comments whether you think polyamory will become acceptable over time. Also let me know what your view on polyamory is, and whether you think that your views will change.