Power grab in the Green Mountain State

To force the inclusion of boys into girls’ sports, Vermont’s school sports league has decided to exclude Mid-Vermont Christian School from its competitions. And to force the inclusion of LGBTQ persons as teachers, Vermont’s education agency has denied Mid-Christian’s eligibility for the state’s scholarship program for rural students. Less than a decade after Justice Anthony Kennedy promised in Obergefell that people of faith could retain their convictions even after judicial imposition of gay marriage, that promise is turning out to be empty.

Last week the legal team at the Alliance Defending Freedom sued Vermont, arguing that the state’s policy of coercing inclusion by exclusion violates the First Amendment, which promises Mid-Vermont and other faith-based institutions the right to practice their religion. And they have strong legal claims. In the past several years, the Supreme Court has handed down several decisions validating the religious liberty of Christian schools.

In Trinity Lutheran, for instance, the Court said that Missouri could not exclude a Christian school from a program that provided safer playground surfaces. That led to Espinoza, where the Court said that Montana could not discriminate against religious schools in its tax-credit scholarship program simply because they were religious. Next came Carson, where the Court told Maine that it could not discriminate against religious schools if scholarship funds went into a general pot to operate the school, and some of the uses of those general funds were faith-based, like chapel services or religious classwork.

That trilogy of cases has been accompanied by two equally excellent decisions regarding employment. In Hosanna Tabor, the Court affirmed the right of a Christian school to insist on called teachers who hold to its statement of faith. And in Our Lady of Guadalupe School, the Court reiterated that holding for a potentially broader range of school employees.

Mid-Vermont’s case asks the next question in line from these important building blocks. If a school cannot be excluded because of its religious uses of funds, can it be excluded because of its religious beliefs, namely those around human sexuality? Put differently, can its ability to participate in state-sponsored programs be conditioned on giving up its right to hire teachers in line with its beliefs on sexuality?

The answer is not obvious as a matter of law. In a certain sense, all Vermont has done here is say: If you wish to participate in our scholarship program, you must abide by the Vermont non-discrimination law, which bars discrimination based on race, religion, sex, national origin, and sexual orientation. But, when Vermont put that requirement in place, it knew its effect would be felt at religious schools. No secular Montessori school or private preparatory academy in the state declines to hire gay individuals to teach.

On its face, Vermont’s is a neutral law of general applicability: All schools must not discriminate based on sexual orientation or gender identity when hiring staff. In a case called Employment Division v. Smith in the early 1990s, the Supreme Court held that the First Amendment’s free exercise clause does not protect someone with a contrary religious belief from a neutral law of general applicability. There, a Native American lost his unemployment insurance benefits after failing a drug test based on his use of sacramental peyote. Tough luck, the Court said; the state’s drug-testing rule was neutral and applicable to all.

It is a decision many conservatives have questioned, if not outright criticized, since its issuance, and many efforts have been undertaken to overturn it. The Court has pulled back from it by often asking whether a supposedly neutral law targets religious people. That seems an obvious tact here, where the State of Vermont decided to impose this new regulation to force religious schools into compliance or out of the program.

Of course, that is the saddest part of this story—that in its single-minded quest to impose its sexual ideology, Vermont chose to railroad the religious liberty of its schools. The state knew exactly what it was doing in this instance, and it chose this path. It knew some Christian schools would refuse to bend the knee, even if it cost them much-needed students and scholarships, and Vermont chose to inflict that pain, that price, to express its displeasure with their adherence to long-standing Christian orthodoxy on sex.

That is not the attitude that a good and gracious America has historically taken, where we have celebrated religious tolerance and religious diversity. But the coerced acceptance of the LGBTQ agenda has driven a stake through the heart of that tradition. What a loss. Let us hope that Alliance Defending Freedom emerges victorious and helps undue the consequences of Employment Division v. Smith.