In the aftermath of the federal guidelines issued two weeks ago requiring all public schools to accommodate the restroom preference of transgender students, a friend asked me a question I’m sure many Christians are thinking about: “Could churches be forced to have transgender restrooms?”
I immediately said, “Of course not! It will never happen!”
My first response to any question regarding questions of government intrusion into church policies is to recall the freedom of religion guaranteed by the First Amendment. America was founded on the free expression of religious convictions and it’s always been absurd to think that the government would or could coerce people of faith to embrace a practice that goes against their beliefs.
At least that’s been the case up until now. The more I reflect on my friend’s question in light of the recent evolution of American law regarding religion, the more I think my initial response may have been wrong. If he were to ask me again I’d have to change my answer from Never to Maybe.
What would have been unthinkable just a few months ago is, I think, a real possibility. The reason is a thirty-three-year-old court case that paves the way for transgender restrooms in churches, though not exactly in the way you might expect.
Bob Jones University, founded in 1927 as a biblical alternative to growing American secularism, was by the early 1970s famous for its fundamentalist beliefs, social conservatism and separation from mainstream culture. The school also was well known for its rigid stance against the intermingling of races. African-American students weren’t accepted until 1971. Even then, inter-racial dating wasn’t allowed. Inter-racial marriage was condemned. Anyone who spoke in favor of either was subject to dismissal from the school.
Those policies caught the attention of the federal government and in 1976 the Internal Revenue Service revoked the school’s tax-exempt status because of its violation of the 1964 Civil Rights Act which banned discrimination in the educational system.
Bob Jones sued to have their tax-exempt status restored, arguing that their religious convictions prohibited the mixing of races and under their First Amendment rights they should be able to practice their religion without penalty. Bob Jones University v United States ended up before the United States Supreme Court and in 1983 the high court handed down a unanimous decision in favor of the IRS.
The language of the court’s decision has particular relevance for our own day:
Neither petitioner qualifies as a tax-exempt organization…[i]t would be wholly incompatible with the concepts underlying tax exemption to grant tax-exempt status to racially discriminatory private educational entities. Whatever may be the rationale for such private schools’ policies, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the above ‘charitable’ concept or within the congressional intent underlying 501(c)(3).
With the loss of the tax-exempt status that allowed donors to deduct contributions from their income tax, the school lost 13% of its revenue the following year. More interestingly, the school did away with its ban on inter-racial dating in 2000 and had their tax-exempt status restored. The pressure brought to bear by the government was successful in changing the school’s policy.
The racism at the root of the trial had to be addressed and few evangelicals today would argue with the decision. But despite the moral imperative of the particular case, a precedent was established with lasting repercussions. The court’s decision provided case law for the priority of civil rights over religious rights. Further, the remedy to a religious institution holding beliefs contrary to those acceptable to the government was to deny the institution the benefits of tax-exempt status.
The parallels between the Bob Jones case and the transgender restroom controversy of our own time are so obvious that it’s hard to see how our argument doesn’t end as did Bob Jones’s. I’m not saying there’s a moral or even legal equivalency between them. Racism like that Bob Jones demonstrated is a moral evil that diminishes people on the basis of objective criteria. Transgenderism, on the other hand, is the subjective experience of sexual identity. They have no moral or legal similarity. The point to keep in mind, though, is how the federal government now classifies the transgender population (a miniscule number) as a group suffering from discrimination and deserving of special accommodation.
Which brings us back to transgender restrooms in churches. If Bob Jones University lost its tax-exempt status because its religious convictions put it at odds with federal law, why wouldn’t local churches face the same penalty?
To be sure, the United States Supreme Court went to great lengths in its decision to say that local churches would never be subject to the same sort of action. I’m not so sure. The landscape since 1983 has changed and in last spring’s closing arguments before the court in Obergefell v Hodges, the case that legalized same-sex marriage, there was a chilling exchange that revealed where all this may be heading. Churches may not be as exempt as they think they are.
Here’s Kirby Anderson from “Point of View” describing last April’s arguments before the Supreme Court:
The top lawyer for the U.S. government had to answer a question he probably would have preferred not to tackle during oral arguments before the U.S. Supreme Court in Obergefell vs. Hodges, the marriage case. Justice Samuel Alito asked the Obama Administration’s Solicitor General, Donald Verrilli a question about how the religious liberty of religious schools that oppose same-sex marriage might be affected if the Court rules that same-sex marriage is a civil right. Justice Alito brought up a case that came before the court in 1983, Bob Jones University vs. United States.
Justice Alito asked: “In the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same sex marriage?”
Mr. Verrilli, the Solicitor General replied: “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, Justice Alito. It is…it is going to be an issue.”
For an organization’s tax exempt status to be revoked means it would no longer be exempt from federal income tax and is not eligible to receive tax-deductible contributions. Many, probably most schools would not survive that.
Solicitor General Verrilli’s answer was: yes, religious schools that oppose same sex marriage in their policies and teachings will have their tax-exempt status challenged and be likely to lose it if same sex marriage becomes the law of the land. What about other organizations that hold to orthodox Christian beliefs? Like churches? Will churches be subject to loss of tax exempt status if every state is forced to perform, or even recognize, same sex marriages?
Another Justice, Antonin Scalia, asked during oral arguments, “Is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if indeed this court holds that they have a constitutional right to marry?” Then he said, “I don’t see how.”
“I don’t see how ministers licensed by the state to perform marriages can refuse to marry two homosexuals if federal law says they have a right to marry,” Scalia said. He was right, of course. What Bob Jones initiated and Obergefell confirmed is that civil rights—however they’re defined—now trump religious liberty. If Christian colleges and Christian ministers aren’t protected from the incoming tide of federal law advocating sexual practices at odds with their beliefs, what makes us think churches will be?
In the government’s mind same-sex marriage and transgender restrooms are connected by one immutable principle. Both are civil rights. And where civil rights are concerned everything else is secondary, even the religious liberties guaranteed in the Constitution.
“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof,” the First Amendment says. When it comes to transgender restrooms in churches, it’s not at all clear if modern America believes those words anymore.