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Lawyers, philosophers and all those who have seen the 2001 movie "Legally Blonde" know Aristotle's famous saying: "Law is reason free from passion."
In the legal clashes over LGBT rights and religious liberty, passions run high, what's "reasonable" is hotly contested, and the law is unsettled. A proposed bill in California shows how contentious and contradictory our most-cherished rights and liberties can be.
It also reveals that compromise between LGBT rights advocates and religious traditionalists is possible.
The bill would require colleges that request an exemption from nondiscrimination statutes to notify all students, employees and the state Student Aid Commission of the basis of the schools' claims. More controversially, the proposal as written would have made it easier for lesbian, gay, bisexual and transgender students to sue private colleges for discrimination.
The pending bill became an instant flashpoint in the ongoing battle over LGBT rights and religious liberty. Most religious colleges in California and elsewhere could not exist without students who rely on state-run grant and loan programs to finance their educations. Despite church-state separation issues, the spirit of the law is that private institutions should not be discriminated against because they are religious.
Students can and do use state financial aid at religious colleges. With few exceptions, the courts have ruled that this is appropriate. Many religious colleges have thus evolved to rely on government loan or scholarship money for a significant portion of their revenue stream.
LGBT activists protest, insisting the letter of the law is on their side. The California schools, after all, want to receive money from government-run programs despite demanding exemptions to nondiscrimination statutes that have recently been expanded to include sexual orientation and gender identity.
As usual, professional activists and partisans on both sides are talking past each other, impugning the others' integrity and casting their opponents as dangerous extremists. As these conflicts proliferate, the activist corps is increasingly unreliable. Religious traditionalists too often accept and champion even the most questionable religious-liberty claims. LGBT activists would seemingly be thrilled if every conservative religious institution closed its doors tomorrow.
The sponsor of the California bill, state Sen. Ricardo Lara, a Los Angeles Democrat, took up the issue "to shed light on the appalling and unacceptable discrimination against LGBT students at these private religious institutions." But he withdrew its most controversial provisions after religious colleges protested.
"I don't want to just rush a bill that's going to have unintended consequences," Lara said, "so I want to take a break to really study this issue further."
It's a commendable response.
We need a better way forward. Or, in Aristotle's parlance, we need the law to free reason from passion. Our political culture honors majority rule and minority rights. It is not a total war. Neither side will achieve anything like total victory. I have sided with wedding vendors' conscience claims but also opposed civil magistrates who refuse to sign same-sex couples' marriage licenses. I see why the California law is so controversial.
LGBT people of course have a right to every kind of protection the law provides them. At the same time, private institutions should be free to operate in accordance with their belief that marriage is the union of a man and a woman and that sexual relations are properly reserved for such unions.
I attended a conservative evangelical college. And though I received a fine education there, I have publicly challenged my alma mater on administrative and academic-freedom issues. I also know that many of my classmates depended on government grants and loans. Without those programs, they might not have accessed an evangelical higher education. The college might not even be able to operate.
For years, I have been very open about my concerns. Conservative evangelicalism has problems. But denying campus housing to married gay students is not one of them. LGBT activists are right to point out that the California proposal would not have automatically cut off funds to these institutions. But any honest reading of the bill points to the near certainty that, if passed, it would begin a sequence of events that ends with religious colleges choosing between abiding by their beliefs or closing their doors.
LGBT rights do not depend on religious colleges facing a choice to either change their beliefs or shut down. Market forces and generational change will do more to adjust conservative attitudes than the state's coercive power ever could. Free from passion, reasonable laws uphold a robust civic pluralism. We look to courts and legislatures to protect rights and liberties, not to change hearts and minds. Change comes through debate, relationships, evidence and experience.
I may be an occasional critic of evangelicals, but Aristotle has me convinced that despisers of traditional Christian sexual morality should find a more efficacious venue than the law through which to express their passions.
— Jacob Lupfer is a contributing editor at Religion News Service and a doctoral candidate in political science at Georgetown University.