Editor’s Note: The article below is included in the forthcoming spring 2021 edition of the Newman Society’s Our Catholic Mission magazine. A version of this piece was published at Crisis Magazine.
In just the first months of the Biden administration, Catholic educators have been confronted by serious threats to their freedom to teach and witness to the Catholic faith.
We knew the storm was coming. Over the last four years, schools and colleges enjoyed a brief respite before the anticipated return of Obama-era policies like the mandate for contraception coverage in healthcare plans and attempts to open bathrooms and locker rooms to students of the opposite sex.
The new threats loom even larger. We face radical attempts to erode protections for Catholic schools, colleges, homeschooling, and all models of Catholic education to fulfill their faith-based mission to uphold the moral law and other Catholic teaching. In particular, the Biden administration seems determined to force Catholic schools and colleges to embrace gender ideology or close their doors.
President Biden has promised to sign the dangerous Equality Act in his first 100 days. At the time this newsletter went to print, the Equality Act had passed the House and was awaiting a vote in the Senate, where its fate may depend on whether the Senate ends the filibuster and requires only a majority vote. Meanwhile, some Republicans have floated a false compromise—misnamed “Fairness for All”—that would only partly delay the collapse of religious freedom.
Should any of these policies become law, Catholic educators must be prepared to go to court to defend their rights. The Cardinal Newman Society is already working with Alliance Defending Freedom to identify litigants for certain cases. Catholics must insist that the courts uphold the First Amendment.
Meanwhile, Catholic educators can take steps quickly to ensure that courts recognize their religious sincerity and their consistency in upholding Catholic teachings. It is vitally important that Catholic schools, colleges, and other educational programs develop and implement policies that address a broad range of potential liabilities, clearly describe their moral expectations for students and employees, and explain why their policies are necessary to fulfill their Catholic mission.
The Newman Society is available to help. The policy standards and other resources on our website can help leaders develop internal policies and link them directly to Catholic teachings. We continue to develop new guidance.
There is no time to lose! The corruption and destruction of Catholic education is the big prize for those who oppose marriage and the family, because Catholic education teaches truth to the next generations.
Early executive actions
One way the Newman Society is striving to help Catholic educators prepare for the difficult months ahead is by sponsoring occasional webinars with legal experts. In February, we hosted a webinar for diocesan and Catholic school leaders with Eric Kniffin, legal advisor to the Newman Society and a former attorney for the Becket Fund and the U.S. Department of Justice. We also hosted a similar webinar for Catholic college leaders with Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom.
Both attorneys assessed the early actions of the Biden administration affecting Catholic education, including the President’s executive order on “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” Issued on his first day in office, January 20, the order opposes children being “denied access to the restroom, the locker room, or school sports” because of gender identity. It requires federal agencies to interpret Title IX (the federal law concerning sex discrimination in education) and other laws in accord with the “reasoning” of the Supreme Court’s Bostock ruling last summer, which forbids adverse employment actions on the basis of “gender identity” and “sexual orientation.” Another directive came in February from the Department of Housing and Urban Development, which announced that it would interpret the Fair Housing Act to include “sexual orientation” and “gender identity” within the scope of sex discrimination. While it may not seem that the Fair Housing Act should impact Catholic education, the new interpretation may be construed to require allowing biological males access to women’s residences at boarding schools and Catholic colleges, and vice versa.
On March 8, President Biden issued an executive order requiring the Education Department to conduct a 100-day review of regulations, policies and guidance and to rescind anything inconsistent with the view that Title IX covers “sexual orientation or gender identity” discrimination.
While these executive actions signal the Biden administration’s intention to press gender ideology under Title IX and other laws, they do not change the laws—that’s what the Equality Act and other Congressional efforts attempt to do. Ultimately federal courts will determine how the Bostock ruling’s reasoning applies to education and other areas, and what religious protections remain.
President Biden strongly supports the Equality Act, which was approved by the House of Representatives on February 25. This disastrous bill is a broad attack on religious freedom and, if passed, must be challenged in the courts as a violation of the First Amendment.
The bill would amend several civil rights laws concerning education, employment, housing, and more to ban discrimination related to “sexual orientation” and “gender identity.” It would expand the federal definition of “public accommodations” to include schools and colleges.
Alarmingly, the Equality Act also would exempt its provisions from the broad protections of the Religious Freedom Restoration Act (RFRA), which apply to every other federal law. RFRA sensibly requires that, for any law impeding on religious activity, Congress must show that it has a “compelling interest” as the basis for the law and that it could not find another way of meeting its objectives with less impact on religion. Clearly Congress could prevent discrimination in all secular activities without forcing Catholic educators to violate their beliefs, but the Equality Act insists on doing so—and prevents appeals to RFRA to demand religious protections.
And that’s not all. Educators hoping for protection under the rather strong religious exemption in Title IX, the law banning sex discrimination in education, would effectively lose that option if the Equality Act is approved. That’s because the bill adds “sexual orientation” and “gender identity” to the scope of Title VI of the Civil Rights Act, which broadly applies to all recipients of federal funds and has no exemption for religious education. In the wake of the Equality Act, Catholic schools and colleges could be sued by their employees or students under Title VI for simply following the Church’s teaching on the nature of the human person, and these institutions would not have recourse to any statutory protections for religious liberty.
Fairness for All Act
For several years, Mormons and some evangelical Christians have worried that changes to nondiscrimination law are unstoppable, and therefore they have advocated a compromise bill that would change federal laws to include “gender identity” and “sexual orientation” but would explicitly exempt religious institutions.
Under the threat of the Equality Act, such a compromise—deceptively dubbed the Fairness for All Act—can seem attractive. But the reality is that, once federal nondiscrimination laws are amended, activists are not going to allow religious exemptions to stand for very long. Here’s clear evidence: the strongest opposition to Fairness for All comes from the LGBT lobby, which has deemed Catholics to be bigots and demands that any law cover religious organizations. The lobby has so far been willing to forgo opportunities to pass some of its most desired provisions from the Equality Act, if religious protections are included.
Aside from tactical concerns regarding the fragility of Fairness for All protections, endorsing “gender identity” and “sexual orientation” as protected classes in the law would be a grave betrayal of Catholic values and the truth that is the foundation of Catholic education. Both labels are false and dangerous. They contradict Catholic teaching on sex and human nature, and there can be no faithful Catholic support for organizing society around such falsehoods.
Furthermore, this compromise would only preserve religious freedom within narrow limits. Fairness for All would not protect the conscience rights of individual Catholics, likely to suffer marginalization and persecution in employment and other social activities. The bill would not prevent state agencies, accreditors, athletic associations, and vendors from deeming Catholic education discriminatory and ineligible for services. Catholic homeschooling and online educational resources could be restricted or banned.
Protecting Catholic education
Additional threats to Catholic education are expected in the coming months: efforts to require doctors to perform “gender reassignment” procedures and force insurers to cover such procedures, to mandate abortion coverage in employee benefit plans, to assert federal oversight of collective bargaining at Catholic colleges, and more. Regardless of federal action, private athletic and accrediting associations may pressure Catholic schools and colleges to compromise on LGBT issues. And struggles continue in the courts, especially to ensure the ministerial exception for all teachers and professors at faithful Catholic institutions.
It won’t be easy, but Catholic education must continue, as it is a key part of the Church’s work of evangelization. The Supreme Court has generally shown respect for religious freedom, but it is up to Catholic education leaders to defend their rights and ensure protection under the First Amendment by firmly grounding all policies in Catholic teaching. Make use of the Newman Society resources on our website and contact us for assistance.
God willing, together we will weather the storm, and Catholic education will come out of this stronger than ever!