By Nathan Berkeley

In her superb 2022 book Religious Freedom after the Sexual Revolution, Helen Alvaré writes:

Together, the legal and cultural developments of the last several decades have valorized and strengthened the influence of new sexual expression norms unlinking sex, marriage, and parenting…Furthermore, sexual expression rights are front and center in both law and culture and supported by a wide array of often wealthy, visible, and powerful corporate, academic, and political voices…[which] are more and more inclined to portray religious freedom as an oppressive opponent of sexual freedom. (42-43) 

Alvaré continues: 

In the future, religious organizations may have to demonstrate exceptional integrity and religious character in order to make the case that their faith, doctrine, and mission depend upon their personnel, services, and operations. They will also have to convincingly tie their adherence to the Church’s sexual expression teachings to their religious core, and explain how the Church’s teachings about sex, marriage, and parenting are not extraneous to the business of being a Catholic institution that exists to witness to Christ while educating, healing, and/or serving the poor. (43)

Well, the future is now, and the same could be said of religious organizations from other faith communities holding convictions that are similarly out of step with the new “sexual expression rights” gaining momentum all around us.   

What Alvaré outlines here is the need for faith-based institutions – whether K-12 schools, hospitals, universities, social service organizations, or others – to connect their faith and practice in specific, consistent, and transparent ways. The RFI Crisis Toolkit for Religious Institutions offers practical guidance for doing just that in the areas of Institutional Governance, Communications, and Community Relationships. 

Any religious organization that refuses to take an affirmative stance toward the rapidly expanding “sexual expression rights” Alvaré describes is at risk. These “rights,” increasingly backed by law, are intended to advance the notion that “fulfilling one’s sexual desires is nearly a human right, and that an individual’s sexual identity is self-created.” (Religious Freedom after the Sexual Revolution, 25) Failing to get on board with this vision of “sexual expressionism” leaves religious organizations vulnerable to lawsuits, smear cam­paigns, hostile media coverage, punitive government action, and more. As a matter of faithfulness and becoming more resilient to these legal and reputational threats, religious organizations should comprehensively review how they organize themselves internally, present themselves publicly, and approach relationships externally – assessing how their practices align with their religious identity, mission, and convictions. The legal and cultural landscape is changing all the time, and it is far better to take action before a crisis materializes.

Expanding Michigan Civil Rights Law

For faith-based organizations in Michigan, a recent amendment to the state’s civil rights law is an example of such a change. In July 2022, the Michigan Supreme Court found that the provision forbidding discrimination on the basis of sex in the state’s Elliott-Larsen Civil Rights Act (ELCRA) also prohibits “sexual orientation and gender identity” (SOGI) discrimination. In so doing, the court imperiled the religious freedom of many organizations across Michigan that strive to serve their communities in ways that honor their faith. 

Education and healthcare are especially fraught areas when it comes to the collision between SOGI nondiscrimination laws and religious freedom. Religious schools, universities, hospitals, health centers, and others are frequent targets of legal coercion and cultural intimidation when they uphold their convictions on human sexuality in their organizational policies and practices. 

Recognizing the threat that the expansion of Michigan’s civil rights law represented, Sacred Heart of Jesus Parish and its school, Sacred Heart Academy, and Christian Healthcare Centers – both based in Grand Rapids – filed a lawsuit in federal district court to protect their free exercise of religion. After the court dismissed their cases, their attorneys at Alliance Defending Freedom (ADF) filed an appeal with the U.S. Court of Appeals for the 6th Circuit, which remains pending. RFI filed an amicus brief on behalf of Christian Healthcare Centers. 

What made these organizations want to take this legal action, and positioned them to be able to do so, is worth considering. 

Exercising Religious Freedom Precedes Claiming Religious Freedom 

Both organizations conduct their hiring and core mission work (education and healthcare, respectively) in accord with their religious convictions on these matters. According to an ADF statement: 

[Michigan’s expanded civil rights] law now requires Christian Healthcare Centers to hire people who do not share their faith, to prescribe cross-sex hormones to facilitate efforts to alter a patient’s biological sex, and to use pronouns that do not accord with a person’s biological sex. All of this violates the ministry’s religious beliefs and undermines its ability to provide safe healthcare to the needy and the rest of the community.

In an ADF statement about Sacred Heart Academy, we find a comparable example of faith in practice, which is now threatened by Michigan’s amended civil rights law. ADF notes that the law:

would require Sacred Heart Academy to hire faculty and staff who lead lives in direct opposition to the Catholic faith, speak messages that violate Church doctrine, and refrain from articulating Catholic beliefs in teaching its students and when advertising the school to prospective students or job applicants.

The first thing to note is that federal, state, and local laws should not impose such burdens. Second, making a free exercise claim to hire, serve, teach, speak, advertise, and so on, in distinctively faith-informed ways is significantly strengthened by having a track record of already transparently and consistently acting faithfully in these areas. 

Civil Rights Law and Adding “SOGI” Protections: What’s the Harm?

In March 2023, the Michigan Legislature codified the Michigan Supreme Court’s 2022 ruling in state law. When Governor Gretchen Whitmer signed the bill, she said: “Our LGBTQ+ friends, family, and neighbors deserve equal protection under the law so they can live their authentic lives…” The notions of expressive individualism and radical autonomy that underlie Whitmer’s comment merit considerable attention. But the immediate question before us has much less to do with the freedom of Michiganders to “live their authentic lives,” and much more to do with the extent to which citizens have the right to use government coercion to demand affirmation of their sexual identities and expressions from those in their surrounding community. The amended ELCRA did not include exemptions for religious institutions and thus leaves them especially vulnerable to such government coercion. 

But, one might ask, don’t SOGI protections merely secure equality for our civic neighbors who understand themselves to be “LGBTQ”? Aren’t these protections a “shield” to protect sexual minorities from maltreatment, rather than  a “sword” that can be wielded against religious institutions? 

Civil rights laws (whether federal, state, or local) designate protected classes such as race, sex, religion, and national origin, among others. And they forbid discrimination in employment, education, housing, public accommodations, and other specified settings on those bases. Historically, legislatures enacted these protections to safeguard certain classes of persons against status- (or identity) based discrimination that was happening on a broad scale. They decidedly did not enact them to advance particular views on sex, marriage, or the nature of male and female, and to supply the legal grounds to punish dissenters. As my co-author and I argued last November regarding a case involving Baylor University:

Those who want to use government power to intervene in these critical matters should put forth transparent policies that deal with them directly, instead of slyly trying to achieve their goals indirectly, and even surreptitiously, under the potent banner of equality. Unfortunately, sexual-orientation and gender-identity [SOGI] nondiscrimination rules often end up being used in just this way.

SOGI nondiscrimination provisions severely undermine religious freedom in ways that other nondiscrimination protections do not. When SOGI expressions and conduct violate a religious community’s moral or anthropological convictions, and when those expressions and conduct are placed within the scope of these laws’ protections (which they routinely are when enforced), the problem becomes abundantly clear. These laws all-too-often treat traditional views on sexuality, marriage, and natural male-female distinctions as demanding punitive government action when religious organizations uphold them in practice. 

Affirming equal human dignity – which Sacred Heart Academy, Christian Healthcare Centers, and countless other religious institutions emphatically do – is not the same thing as holding in equal regard all forms of sexual conduct or “gender expression,” which these and many other organizations emphatically do not. Yet, proponents of “LGBTQ rights” tend to collapse the distinction altogether, and want the law to do the same.

Conclusion

I will end where I began, with Helen Alvaré’s exhortation to religious organizations “to demonstrate exceptional integrity and religious character” in upholding their faith tenets across all areas of what they do and who they are. Navigating American society today will continue to be extraordinarily challenging for religious organizations that dissent from the “sexual expression rights” Alvaré highlights. Just today, the Biden Administration issued a new rule for implementing Title IX (a 1972 law that bars sex discrimination in schools that receive federal funding), adding “sexual orientation and gender identity” to the list of protected classes.

Those institutions that seek to remain faithful to their enduring convictions on sex, marriage, abortion, and male-female distinctions in an increasingly hostile and cynical society must do so in specific, consistent, and transparent ways, across the entirety of their organizations. In striving to be more faithful, religious institutions can also become more resilient.

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Nathan A. Berkeley is RFI’s Communications Director and Research Coordinator