What are conservative Christians to do? Since the US Supreme Court has ruled that same-sex marriage must be recognized nationwide, some conservatives have called for retreat, for the “Benedict Option.” Christian colleges, some fret, are in a particularly difficult position, since they could be forced to violate their own religious principles in order to include same-sex couples, transgender students and faculty, and unmarried homosexual students and faculty. Some schools, however, have taken advantage of a loophole in federal law that seems to alleviate some of these fears. This loophole, however, only sidesteps the real problem; it leaves the most important questions unaddressed.
First, a little background: As we noted in the run-up to the Obergefell decision, conservative religious colleges worried that the SCOTUS ruling could force them into an impossible position. It would not be theologically possible for many schools to introduce housing for same-sex couples, for instance. Yet if they did not, they would be in violation of non-discrimination rules.
As I predicted based on my current research into the history of conservative evangelical higher education, this kind of thing would likely lead to another fracture among the network of conservative colleges and universities.
Once the decision was passed, it did indeed prompt a split among conservative Christian schools. Some schools immediately changed their policies about homosexuality to accommodate the ruling. Others doubled down on their existing policies banning homosexuality.
We read with interest this week that some three dozen religious schools have applied for a waiver from Title IX. Via the New York Times, we see news from The Column that handfuls of Christian college have successfully applied for waivers.
As The Column reports, the original language of Title IX banned sex- and gender-based discrimination at institutions of higher education. But it included a vital loophole. Such rules, the law stated, could be waived in some cases. As Andy Birkey of The Column puts it,
When Title IX was passed in 1972 to combat discrimination based on sex, Congress added a small but powerful provision that states that an educational institution that is “controlled by a religious organization” does not have to comply if Title IX “would not be consistent with the religious tenets of such organization.”
Apparently, thirty-six schools have applied for these waivers, and twenty-seven have been approved. For many of the schools, the Christian Legal Society has provided a how-to guide to apply for such waivers.
For conservative colleges, this waiver might seem to solve their legal and religious pickle. But it will not heal the rift between such schools. Schools such as Goshen College and Eastern Mennonite University, have already left the Council for Christian Colleges and Universities. They changed their policies to welcome homosexual faculty, and presumably transgender faculty as well.
This loophole might provide wiggle room for some conservative religious schools. It leaves the most important questions on the table, however. What is the proper religious attitude toward non-heterosexual sex? Toward non-traditional marriages? Toward gender identity and sexuality as a whole?