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The left blinks on SB1146

Well, a surprising bit of partially good news. After a lot of negative publicity, the sponsor of California's SB1146 has blinked on its worst provisions--namely, blocking colleges from taking any students who receive state aid if the colleges "discriminate" on the basis of sexual orientation or gender identity. See my earlier posts here and here.

Senator Lara, who sounds like a leftist totalitarian if there ever were one, has said that he will back off on those provisions in his bill for the time being. But it sounds like he may try again next year. Meanwhile, the new version of the bill still tries to brand schools with a scarlet letter if they get a religious exemption to the transgender interpretation of Title IX, and it will do one more thing: It will require schools to report to the state (!!) when they exercise discipline on a student for moral code reasons.

One wonders how that is even consistent with FERPA, the federal privacy law about student information. I suppose they can and will suppress student names, but still. Will they report discipline by type? "This year, we suspended three students for heterosexual fornication, two students for homosexual fornication, ten students for drunkenness, and one faculty member for adultery." Or what? Couldn't even that possibly be used to violate the privacy of the people involved? Or is it only discipline related to homosexuality that is to be reported?

I don't know if Senator Lara has even thought through his reporting requirements. He says he's trying to gather data on how frequently schools discriminate on the basis of sexual orientation and gender identity. Does that mean they also have to report to the state when they explain to a student who "identifies" as the opposite sex that he won't be able to come to their school at all until he stops demanding that everyone play along with his mental illness? I'm sure Lara would love to have that reported as well, but so far it isn't being mentioned.

I haven't the slightest doubt that these intrusive reporting requirements, if they can even be legally spelled out and enforced, will further weaken Christian schools' commitments to their moral standards. So I'm not terribly thrilled about the newest version of the law, and I don't think schools should say that they support it.

However, let's not be gloomy. A bullet has been dodged. A very serious bullet indeed. And it was dodged by perfectly ordinary political means--publicity, signature-gathering, and lobbying. Kudos are especially due to the presidents of Christian colleges, such as Barry Corey of Biola, who spoke up explicitly and loudly about the dangers of this law rather than fretting that somehow they aren't allowed to because of their college's tax-exempt status.

David French has a good discussion here that includes these significant paragraphs:

The lessons here are clear. Never surrender. Always seek to persuade. Prepare to protest. Exercise your constitutional rights and apply political pressure to the same extent that leftist activists do. When the California bill was first proposed, I spoke to social conservatives who simply presumed total defeat. Christians always lose in blue states, they said. The political battle was pointless, and only the courts could save us now.

Yet I’ve seen Christians prevail even on the most progressive campuses through a combination of persistent persuasion and vigorous activism. This same combination prevailed in California today. It’s not a total victory, but the difference between the bill as amended and as proposed is so vast that university leaders are breathing a sigh of relief.

Though I can't re-find the link right now, I was especially interested to notice that one story about the opposition to SB1146 stated that lawmakers were concerned about legal costs to the state from lawsuits filed on behalf of the colleges that lost state aid. If you ever wonder whether lawfare works, remember this incident and thank groups like the Alliance Defending Freedom for existing.

Comments (25)

FERPA allows disclosure of education records in connection with a state or federal audit. Besides, it's relatively toothless when compared to say, HIPAA.

Lara will collect his reports next year and wave them around shouting about how many students are being oppressed by religious bigotry, and we'll be right back here again. Only this time with empirical evidence of "discrimination" it will succeed.

Frankly, if the schools are really applying their codes, they should have *lots* more disciplinary actions on the basis of heterosexual activity than on the basis of homosexual activity. Moreover, they should be able to demonstrate that as far as unmarried people are concerned, they are applying their codes the same to everybody. If it's a matter of expelling or punishing someone for immoral behavior, the only place where discrimination will come in is if someone "marries" a homosexual partner and the school expels the person for it. Which, of course, they should, and I hope they have the spine to do so.

Interestingly the one case that was paraded before the legislature of a poor, discriminated-against homosexual was a case where the guy was not even allegedly "married" but just living with his homosexual lover. So the school could state truthfully enough that it would also expel a guy who was living unmarried with his girlfriend. I suppose post-Obergefell he'd try to make a test case out of it by getting "married."

That's setting aside the whole transgender nonsense. I imagine that will come up more in admissions in the first place than in discipline ex post facto for violating a moral code at the school.

In light of what could have been, this is good news indeed. It sounds like the right to private action lawsuits for being "discriminated" against has also been removed. This provision would have left these schools sitting ducks for nuisance lawsuits.

I still don't like that this issue is going to have to be fought again and again. That is where "progressives" have the edge, it's easier to fight to change than to fight for things to not change. This version of SB 1146, if passed, also (as noted by CJ already) just allows them to further bolster their "discrimination" argument. The mandating reporting could also be used by activist students to enroll and intentionally get disciplined for a homosexual conduct moral violation. I would imagine even one kid doing this at each school would look bad the next time this issue comes up.

It sounds like the right to private action lawsuits for being "discriminated" against has also been removed. This provision would have left these schools sitting ducks for nuisance lawsuits.

Yes, correct.

The mandating reporting could also be used by activist students to enroll and intentionally get disciplined for a homosexual conduct moral violation. I would imagine even one kid doing this at each school would look bad the next time this issue comes up.

I wouldn't be surprised. That's why I think it was incorrect for some of the schools to change from "oppose" to "support." Why support a law that is obviously trying to harass you, just because it could have been much worse? They could leave their official positio as "oppose" even if they don't continue to expend a lot of current energy lobbying against it.

Is the best option for Christian Colleges, currently located in California, to move out of California?

I'd say that's impossible for many of them. These are residential colleges. They have a large infrastructure, big campuses and buildings that would be nearly impossible to sell, faculty and staff settled in the area, and their regulatory assumptions set up in relation to their region (e.g., regional accreditation). In many cases their particular campuses are points of attachment for alumni. It would be tantamount to closing up shop for most of them to move. The only reason Ave Maria was able to move from Michigan to Florida was...well...because it was run by Tom Monaghan, who is extremely rich and also, by common agreement, stubborn to the point of being crazy, and also because Ave Maria was relatively _new_. It wasn't depending on the giving of alumni with a personal "sense of place" connected to that particular location that had been set up for decades.

I have a long interest, and some professional experience, in religion clause litigation.
I suspect that Sen. Lara's desire to audit for discrimination will fall afoul of the rule that states must not entangle themselves in religious questions, which in my mind would include when mercy applies and when rigor is required.
If, that is, the legislature passes it and the governor signs it. Fight, fight, fight!

Yeah, I just have a lot of questions, legal and moral, about how this is going to work. How much detail can they or should they go into about why a student was disciplined? Whatever happened to discretion? There are going to be a million jillion variations on these things--whether the student was defiant or a repeat offender, what the offense was, etc.

>> Whatever happened to discretion?

Well I hate to break it to those eager for the gamesmanship of scheming ways to stick it to the man, but I'd say discretion goes out once one accepts that one can't publicly make any distinctions between homosexual sex and heterosexual sex beyond its relationship to marriage.

That non-discretion ship sailed long before there was any threat of SB 1146. It has happened due to private agitation by activists in recent years. So from what I can tell the Christian colleges I'm aware of have been enforcing such rules, or at least vigorously denying they do otherwise, all by themselves for quite some time. This is so at least because they no longer have the language to explain any differences. If you're not willing and able to publicly state a difference, then the only way to avoid giving one is to self-enforce non-discretionary policies, which means equality of outcome.

But I suspect such policies were also anticipatory, driven by the fear that the state would eventually take away the grants to students if they didn't have a reasonable claim to non-discrimination on any homosexual questions. Everybody knew attempts at removing grants would eventually be made. They also know that without the grants it hurts the likelihood of planned expansions in diversity and anti-hate (or whatever the term) initiatives and curriculum changes to support them that the administrators tell us they're considering. They're praising the Lord now.

They also know that without the grants it hurts the likelihood of planned expansions in diversity and anti-hate (or whatever the term) initiatives and curriculum changes to support them that the administrators tell us they're considering. They're praising the Lord now.

I'm sure there are "Christian" colleges that are Christian in name only and are totally "non-discriminatory" on these issues.

But if they are, then they could have kept their grants. They would have had no reason to lobby against SB1146.

The real situation is rather more complex. Most conservative or semi-conservative colleges maintain that they do not discriminate on the basis of homosexual *orientation* alone but that homosexual *acts* are sinful and that they cannot endorse them. Now, I myself think this doesn't work well in the context of a residential college (at least). I think they should take the even-more-forward position that they cannot be housing people with same-sex attraction in dorm rooms with others of the same sex. But setting that aside for the minute, it does mean that these schools are still holding the line on *something* that the left will not allow. Many of the colleges are sufficiently wimpy that they probably often try to carry out a "don't ask, don't tell" policy, but the phenomenon of same-sex "marriage" makes even that impossible. If some student tells you he is "married" to his male partner, and your official position is that same-sex *acts* are wrong, you have to do something, and it's going to be discriminatory.

That was one of the reasons the schools lobbied against SB1146.

Another reason was the transgender issue, because most of them are *not* on-board yet with the full transgender agenda. They aren't going to let some guy waltz in and say he "identifies" as a woman and give him a girl roommate. Even if one looks at it cynically, neither the alumni donors nor the parents are going to put up with that. These Christian schools lobbying against the bill are not going to put "transgender" athletes on the team of the opposite sex, and so on and so forth.

So they are holding the line there, too, and Senator Lara was trying to force that issue.

So, yes, I think there are definitely wimpiness problems with Christian colleges. They shouldn't have LGBT support groups and all that nonsense. They shouldn't be saying that they don't discriminate on the basis of orientation. They shouldn't be having speakers lecturing students on how Christianity has been too unkind to gays. They are in some ways compromised. But when it came to adopting the full-scale LGBT *agenda*, as demanded by Senator Lara, they said no. And good for them.

Plus, Mark, I don't think I mean by "discretion" what you think I meant. I meant, y'know, not writing out in a report to the state government the sins committed by your students.

On "discretion", I still don't see where we're so far apart. If a report were to be made to the state, wouldn't the first step to make sure the data is acceptable to them? But my other point and perhaps more central point was that even without the threat of bureaucratic or regulatory conformity, it isn't clear to me the Christian universities I'm familiar with would act any differently. It has been private pressure by activists that has brought about the changes even before 1446 came along.

And I don't see it as a matter of wimpiness at all. I think it's a matter of actually not knowing basic facts of life. Once you naturalize desire, you plasticize sexuality to accommodate the reality of human choices and behavior. You have to. Whereas if you recognize the plasticity of human desire as in the classic ways, you see the natural basis of human sexuality, however much it is supported by convention. I was always a Girardian if you will on that, but now I have a name for it. I'm not going to argue this here because I know it's a minority and unpopular view. We must accept that desire is to be romanticized and naturalized to be understood. I get it.

Still, if you read the books the leaders of these institutions are cranking out recently, I think you'd find clearly enough indeed they've followed this script to abandon traditional views of sexuality and sin. It's stunning. I honestly never thought the issue was simply about homosexuality. I have a nuanced view of what postmodernism is, but in any case I think fundamentally these guys are salesmen. They're just streamlining any obstacles to sales. Homosexuality is just the current obstacle. There have been others in the rear view mirror and there will be others ahead.

Bottom line I think that's what's going on. But anyway, I'm not going to argue any of this. It's pointless. I think the church made a huge mistake in farming out its thinking to the academy.

I'm not going to demonstrate with links, though I easily could, that these folks are promising a great spiritual awakening and the churches to be full of new members if we'll just get right on this issue of homosexuality. It's stunning.

But down the road it will be another issue. The only thing we can be sure of is that it will involve forms of relational idealism. Church on a mystical union model. Be made whole in community. That's what is being sold.

I'm not going to demonstrate with links, though I easily could, that these folks are promising a great spiritual awakening and the churches to be full of new members if we'll just get right on this issue of homosexuality. It's stunning.

I'm sure you're right. I have my own documentation of the weirdness going on in this area. Mark Yarhouse, at a supposedly conservative Christian college, is seriously messed-up on the transgender issue.

But the fact remains that the administrations _did_ go to bat on SB1146, and they *wouldn't have needed to do so* if they were fully on-board with the left's agenda on these issues. Moreover, I'll go so far as to say that they had to have something pretty specific in mind that they did not think they could compromise on. I don't think just a vague desire to order their own moral affairs would have motivated them to be as clear in opposing SB1146 as they were. More interesting still, even after Lara amended it once to take out the references to specifically religious discrimination, they _still_ opposed it. This is significant. I half expected them to cave in then and to say that they opposed the original version only because it forbade religious "discrimination" and not because it forbade "sexual orientation and gender identity" discrimination. But not so.

Suffice it to say that I've been pleasantly surprised. Maybe it was the prospect of giving married student housing to homosexual couples that galvanized the otherwise somewhat confused administrators, but galvanized they were.

I think, too, that there is often a gap between administration and faculty, with administration being generally clearer and more conservative on sexual issues, even if quite imperfect. Calvin College is a perfect example of this trend. Cedarville has had something of a conservative administrative backlash as well. And Wheaton tried to put the brakes on the runaway student LGBT club, though I think the changes were too little, too late and that the club should have never been approved in the first place. But there is somewhat of a trend of administrators trying to hold the line, and I believe in giving credit where it's due. All the more so as I have been a fairly sharp critic of Christian colleges' compromises.

I fear schools like, Westminster Theological Seminary in Escondido, California, will wish they were parochial schools, and not free standing theological educational institution. I suspect the governing regime in California will be less inclined to interfere with Church discipline cases then with sincerely held religious beliefs of free standing institutions.

I suspect the governing regime in California will be less inclined to interfere with Church discipline cases then with sincerely held religious beliefs of free standing institutions.

We have data on that, and here's how it went down: SB1146 as written did contain an exemption for schools that were set up *solely* to prepare students for the ministry. This could have "tracked" a school's being "parochial," as I think you mean that word, but not necessarily. The two could come apart. For example: I am pretty certain that a school like Moody Bible Institute as *originally founded* (not as it is now) would have been exempt, even though "free-standing." But also, a "parochial" school that offered degrees *other than* those to prepare students for the ministry or for theological teaching would not have been exempt.

So it wasn't really working out quite along those lines.

Well Lydia I feel better now in that comparatively you seem more cynical than I am on this. I wasn't surprised they fought it in every way, and I'm not surprised the state caved. I've have given near 100% odds on the former and somewhere near 50-50 on the latter. I don't think they had much choice, and I'm not unmindful that's a good thing nor the social dynamics underlying it as I've tried to say.

You seem focused on the legal/behavioral issues of Christian students, and my concern is more with the plausibility of alternatives including classic philosophical and theological underpinnings to the outside world. The reason is simple. Talk and action diverged quite easily and have for a long time in elite circles, both religious and non-religious. I'm not a fan of Charles Murray, but I think he got that much right. Elites no longer preach what they practice.

To the average Christian student it doesn't matter that much why they get into traditional marriages and stay there as long as they do, and they do at pretty high rates. But to those farther down the food chain trying to live the idealistic language these guys traffic in, who have no clue that there's a wide divergence between elite talk and elite action, it's highly destructive. If I were only concerned about Christian college life I'd be pretty non-plussed by the books printed by Christian leaders. Words and ideas matter but not to everyone equally, since their effects aren't uniformly distributed.

My own biggest theoretical concerns about what is being said by conservative evangelicals on this issue relate to a) the abandonment of the natural law and b) the reliance on the assumption that all sin is equal. I'm not even including the people outright arguing that there's nothing wrong with homosexual acts. They're obviously liberals entirely.

But among conservative evangelicals, there is still an agreement that it's wrong to commit homosexual acts. Okay, good. But if you don't ground that in the natural law, if you just make it a divine command, then I am very concerned that the position is going to become irrelevant to any public policy and also that it's going to be hard to hold on to. It becomes sort of like God's saying that it's wrong to eat broccoli on Tuesdays. And then trying to say that eating broccoli on Tuesdays is just as bad as killing babies, because both are against God's command. It's such an absurd position that no one can hold it for long with a straight face.

The attempt to get rid of any "ick factor" concerning homosexual acts and _especially_ any ick factor related to homosexual orientation is going to come back to haunt Christians again and again.


Feel free to comment on that post at its original location.

But for now, we do have something to celebrate in the backdown on 1146.

...SB1146 as written did contain an exemption for schools that were set up *solely* to prepare students for the ministry

Fuller Theological Seminary has a School of Psychology. http://fuller.edu/school-of-psychology/

It sounds like the Seminary would be exempted but the School of Psychology would not be.

Either that or the very existence of the school of psychology would render the entire seminary non-exempt, and wouldn't that be interesting? But I don't even know who would have decided those things. I'm glad the question is moot for the moment.

Yes I celebrate the backdown on 1146 too.

But OMG Lydia. On your "Inflammatory language, perversions, and the church" link. Wow. If there were such a thing as a reverse fisking (is there?), or if such a thing would be effective (agreement is always more emotionally exciting), I'd give it a shot. But the answers are probably no and no. Well it's probably my laziness, and/or the whiskey sour, but I can't add anything to what you've said. I can only add praise to such a subtle tour de force. I wish I had written that. It expresses so completely how I think about it. Feeling warm and fuzzies all around. Not because it seems to me we agree, but because anyone does.

Sooner or later, probably sooner, I'm going to use your “act-orientation distinction” and probably in some form your "discretion and the condemnation of TMI" too. The analogies are dead on, and I've tried to make the same point myself, no doubt to less effect. Just sublime. Bravo!

On the lattter, I wonder if you've heard of Malcolm Parks article "Ideology in Personal Communication" re: "The Ideology of Intimacy". https://books.google.com/books?id=LYbH2vOpMRoC&pg=PA79&lpg=PA79&dq=malcolm+parks+off+the+couch+and+into+the+world

I find myself referring to it often on subjects related to TMI. I'm not persuaded it's some sort of narcissism, as many seem to think. I think people do it because they've been told that's what good people do, and they believe it and try to act on it as they should. They're being rational. I just think it's false, and we've been sold a bill of goods. I suspect introverts can identify more than extroverts. No worries if you don't see it as I do. It's a minority view no question. Just tossing it out there in case it is relevant for others.

Oops, I meant to say "agreement is always LESS emotionally exciting"

Abut the abandonment of natural law. An educator at a Christian school I know familiar recently posted his “top academic books on the Bible and homosexuality”. At the top of a list of five books was Robert Gagnon’s “The Bible and Homosexual Practice”, which I'd not heard of.

So I looked up that first book on Goggle books to skim what looked to be the hight points based on the TOC. It seemed to have a lot of merit actually, but in just a few minutes I came across this gem:

“Despite the best effort of clinicians, the recidivism rate for rapists and child molesters is extremely high. The reason why is clear: there is a biological or physiological component to their peculiar experience of sexual arousal.”

People think they have to bow at the altar of naturalism, so they try to combine incompatible systems of belief. It’s crazy. I would like to think this professor warns these undergrads about this aspect of the book, but don’t know that he does and I have my doubts.

Everything I know about Gagnon shows him to be extremely strong. I have seen no evidence that he sets aside or denies natural law at all, and he's been an extremely uncompromising voice on these issues in the evangelical world. He's taken a lot of flak for it, too. I don't think that the quotation you give is in conflict with a recognition of natural law. I also looked up the page on which it occurs. His very point there is that there can be a biological component to some wrong and perverted urge but that this does not make it wrong to try to get rid of that urge and certainly does not require one to act upon it. There could be a "biological or physiological component" to a moral perversion contrary to the natural law. In fact, in the context, Gagnon is even defending "conversion therapy," which is considered fairly "radically conservative" even in conservative evangelical circles. But I suspect you and I would disagree about whether there is any such necessary conflict between "a biological or physiological component" to some perversion and a robust affirmation of natural law, and I'm not particularly interested in debating that point here.

Yes I understand the context. Like I said, the book has a lot of merit. I even was pleased he had what I'd call a refreshingly realistic view of Alcoholics Anonymous, and that seems pretty rare to me. I guess I have trouble with such an absolute statement. If he'd have said "some think" or "there's some reason to think ..." it would have been easier to swallow.

Since there's a biological basis for human life and a biological basis for the pleasures of sexual activity, I just don't really know what it means to say there's a biological basis for such arousal. No idea.

Any debate that would be fruitful on this question in my opinion would come down to questions of historical understandings, whether the terms be orientation, disposition, or habitus, since I don't think science has yielded anything towards our understanding of such things.

I think the neo-Thomistic project of slamming the door shut on idealism by any and every possible means has quite thoroughly polluted the waters here. John Deely has shown a better path for Thomistic realism in my opinion. I've literally yet to meet another Christian in my social circles who knows his name however, even those with phil Phd in top European universities. It's strange, but no doubt because of the social silos of analytic philosophy departments. Deely is conversant in Continental philosophy and Catholic.

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