Motions for defense

JACKSON, Tenn.–Within hours of the Obergefell decision legalizing same-sex marriage, Union University’s campus visit coordinator received an email asking if a person in a same-sex marriage could visit as a prospective student.

“That kicked off a lively discussion at the next executive council meeting about who was going to develop appropriate policies and procedures,” said Vice President Dan Griffin, who oversees Union’s enrollment operation from a small, windowless office decked out with St. Louis Cardinals paraphernalia. “We’re happy to engage the culture, but I’m not looking to engage someone looking to sue us.”

The LGBT community has argued that expanding LGBT rights would not hurt anyone, but the experiences of various Christian institutions undercut that claim long before the Supreme Court’s Obergefell decision last June. For example: In 2007 a transgender professor filed a complaint against Spring Arbor University, a Free Methodist school, when it chose not to renew his contract because he began wearing dresses and makeup to class; in 2014 a transgender student at George Fox University, a Quaker school, filed a discrimination complaint after the school refused to let the female-turned-male live in male-only student housing; in 2014 the accrediting body overseeing Gordon College, an evangelical school, launched an unscheduled review of Gordon discrimination policies after its president signed a petition defending Christian hiring rights.

All three of those situations eventually settled in favor of the schools, but such controversies have left institutions with a choice: Hope controversy doesn’t find you, or take the advice of Christian legal groups and clearly articulate beliefs, policies, and behavioral standards ahead of time. Union University, the oldest Southern Baptist school in the country, has chosen the latter approach.

On the last Tuesday in August before students arrived at Union University, President Samuel “Dub” Oliver convened his executive council for its weekly meeting. Bearded Provost Ben Mitchell, in his rich baritone voice, led the seven-member council in opening prayer—for special needs, facilities staff, and new students who would be arriving that week.

The meeting, held around a long, wooden conference table, proceeded with typical topics, including a new endowment grant, a revised student recruiting strategy, and the welcome week schedule. But it ended with an item borne of living in a post-Obergefell world: How should college administrators tell the campus that Union had just withdrawn from the Council for Christian Colleges and Universities (CCCU) after two member schools opened their hiring policies to include same-sex couples?

“Should we inform our staffs?” Yes. “Can I tell the deans this afternoon?” Yes.

“We aren’t trying to pull others away from the CCCU,” said Oliver, dressed in a striped shirt with his standard bow tie. “We’ve said here’s our stand, and it’s clear there are other schools that don’t feel the same way.”

Union’s CCCU decision is only one of many issues facing it and every school committed to Christ-centered education. When the U.S. Supreme Court in June forced all 50 states to legalize same-sex marriage, it carried huge implications for faith-based institutions of all types, but higher education will likely be one of the first fronts to feel its effects. From hiring, housing, and admissions policies to tax-exempt status, Christian colleges and universities are grappling with issues that could fundamentally change the way they operate—and may put at risk the existence of some.

‘We’ve committed not to abandon God’s Word, [and] we’re prepared to advocate for our rights. … There will be even stronger challenges to religious liberty in the days ahead.’—Oliver

“We’ve committed not to abandon God’s Word, [and] we’re prepared to advocate for our rights,” Oliver said. “There will be even stronger challenges to religious liberty in the days ahead.”

Since last year Union’s executive council has regularly discussed potential actions related to sexual orientation and gender identity. It has made consistency in all areas a high priority: “If we’re going to be faith-based with a biblical worldview, then we need to consistently stand on that and not deviate one bit,” said Gary Carter, Union’s CFO since 1991.

Union’s stance has taken various forms. After a former Union faculty member, David Gushee, last year wrote a book in which he argued Christians should sanction “covenanted” relationships between same-sex couples, Union publicly reiterated its adherence to biblical sexual ethics. It also deployed a current professor, George Guthrie, to publish a lengthy book review at The Gospel Coalition, denouncing Gushee’s views as “painfully undeveloped and unconvincing.”

Another example: In January Union applied for an exemption from Title IX—a law most commonly associated with mandating equal numbers of male and female athletes—after the Department of Education in 2014 began interpreting the word “sex” to include gender identity. That means Christian schools receiving federal financial assistance could face complaints—as George Fox University did—based on admissions, employment, housing, or discipline policies that don’t meet the new orthodoxy. Rather than waiting on a potential complaint to arise, as many Christian schools have chosen to do (see sidebar), Union obtained its exemption in April.

Union’s denominational affiliation gives it the advantage of clarity: The Title IX exemption explicitly says the statute does not apply if it violates the religious tenets of an institution’s controlling religious organization—in this case the Tennessee Baptist Convention. That’s good for Union, but it leaves independent schools—even highly religious ones such as Wheaton College—on less secure footing. Greg Baylor, Alliance Defending Freedom’s lead higher education attorney, told me the Department of Education has issued exemptions to non-denominational schools in the past, but it has shown a reluctance to do so in recent months.

For schools without denominational covering, it’s even more important to detail various policies, rooted in Scripture and historic creeds, and to associate with like-minded institutions, such as in the CCCU. Many schools will continue to look to the CCCU as their primary representation in Washington, but Union felt it would weaken its position to associate with a group including (at least for now) two member schools that have changed their views on same-sex marriage. The International Association of Baptist Colleges and Universities, of which Dub Oliver is president, does not have a lobbying function, so Union will look to the Southern Baptist Convention’s Ethics and Religious Liberty Commission and the Family Research Council to represent its interests in Washington.

TWO WEEKS AFTER the Obergefell decision, an Associated Press poll found a majority of Americans—56 percent to 39 percent—think religious liberties should win when they come in conflict with gay rights, but that provides little solace for schools LGBT activists may target.

The questions are many: Can LGBT persons visit, apply, and enroll? Can they live on campus? How does the school support a student who identifies as gay but is committed to a life of celibacy? Does the school need gender-neutral bathrooms?

“We’re blazing new trails when it comes to policy,” said Griffin, who is writing policies for prospective students, while the dean of students, Bryan Carrier, is writing policies for those already enrolled. After the drafting process, the policies will move into internal review and then to the executive council for consideration and review by a legal team. Once in place, the policies will need to stand up to the scrutiny of accrediting bodies.

Union has worked with other schools, including Cedarville University and Moody Bible Institute, but many of the needed policies are not yet written. “I assume everybody is waiting for somebody to be first,” Griffin said, adding that once Union’s policies are ready to go in the coming weeks, “we won’t wait on anyone else” to enact them.

The biggest unanswered questions are financial: Could Christian institutions one day have to pay property tax? Sales tax? Could donors lose the charitable deduction on gifts? Could the government prohibit students receiving government aid from attending schools that believe in traditional marriage?

During a July 29 hearing, Sen. Mike Lee, R-Utah, asked IRS Commissioner John Koskinen if he would commit not to take any action to remove tax-exempt status from religious colleges and universities. Koskinen said, “I can make that commitment,” but then qualified it: “That’s not gonna happen in the next 2½ years.”

Lee has filed a bill that would prohibit the government from making tax-status-related decisions based solely on an institution’s views on marriage, but in the meantime, Koskinen’s comments didn’t give them much reassurance. “Christian schools should prepare for the possibility of losing tax-exempt status and federal aid,” ADF’s Greg Baylor said.

The prospect of life after federal money dramatically increases the importance of fundraising, including amassing a large endowment. Union’s endowment is about $35 million—low for a school founded in 1823—largely due to investing some $165 million in buildings and infrastructure at its 40-year-old campus.

Union’s $90 million annual budget includes about $6.6 million in debt service, an 8 percent ratio that is considered healthy among its peers. But, like most private schools, Union is dependent on tuition from its 4,200 students, 60 percent of whom receive federal loans or grants.

What would happen if Union students couldn’t obtain federal tuition dollars? “Best case, it would limit the students who could come,” said Union CFO Gary Carter. “Hillsdale survived, so I’d like to think Union would survive.“

Hillsdale College is one of only a handful of schools that refuse all federal dollars, but among them there is reason for optimism. Grove City College began refusing federal student aid in 1988, and it has since thrived: After launching a $90 million capital campaign in 2011, the school announced in late August that some 16,500 individuals and organizations had donated more than $95 million for scholarships, construction, and other projects.

That may be the way of the future, Oliver told me while sitting in his Union office on the eve of his 50th birthday. He said Union doesn’t view marriage as an optional issue and is willing to endure whatever hardships are necessary to maintain its beliefs—but survival may take a team effort.

“I see the church lining up around Union and the other schools that have been faithful and saying this is too important to go away,” Oliver said. “There are already thousands of people who give to Union and other institutions each year, so I’m hopeful.”

New rules

ADF’s Greg Baylor said most statutes that have religious freedom exemptions come with a provision that applies to anyone who needs it, but the Title IX exemption only applies to those who ask for it. After the Department of Education released new sexual assault guidelines (and interpretations) in 2014, Baylor said ADF distributed information on the implications for faith-based institutions: “We want them to know they can’t ignore this. They have to be thinking about it.”

So far 67 schools have either obtained a Title IX exemption or are in process, but many have held back out of fear that their exemption application will become public and spark controversy.

The new Title IX interpretation isn’t the only threat: Title VII of the Civil Rights Act of 1964 could produce sex discrimination suits. “It’s sort of like an unintended time bomb planted in 1964 that is just now exploding because of the way it’s being interpreted,” Baylor said. “It’s doing ENDA [the Employment Non-Discrimination Act] without having Congress vote on it.” —J.C.D.