Perspective: How a California Law Would Pit LGBT Rights Against Religious Institutions' Beliefs

A bill that would extend the non-discrimination requirements of a state-funded university and college scholarship program to participating religious colleges and universities is quickly making its way through the California state legislature. Opponents argue that as currently drafted, California's SB 1146 (California Legislative Tracker) would make it impossible for these religious institutions to continue to uphold and enforce their faith-based sexual conduct rules. This article is an analysis of the current bill, a look forward as to what could happen if it passes, and a brief survey of potential outcomes of prospective litigation. The article is not intended to address the correctness of the religious belief, but rather to address it in the larger context of the right of religious institutions to freely exercise their religious beliefs.

On June 30, 2016, SB 1146, which passed the State Senate in May, will be heard before the Assembly Judiciary Committee. According to bill opponents, schools that receive money via the Cal-Grant scholarship program would no longer be able to limit married student housing to married-female couples, bar transgendered individuals from the dorms of their choice or otherwise act in a discriminatory manner against LGBT students.

An earlier draft of the bill included prohibitions religion-based discrimination, but that language has since been omitted. Originally, SB 1146 would have prevented Christian colleges from things such as favoring students who are members of their faith or requiring chapel attendance.

Cal Grant scholarships provide up to $9,084 for tuition and $1,656 in tuition and fee assistance each year to students that meet financial and academic requirements who attend qualifying private colleges and universities.

Several Christian universities and colleges are opposing the bill including BIOLA University, Fresno Pacific University, William Jessup University, Concordia University Irvine, and Life Pacific College, and others. The Association of Independent California Colleges and Universities (AICCU) has requested that the first Section of SB 1146, which applies non-discrimination provisions to religious colleges and universities, be eliminated.

How SB 1146 Changes the Law First, SB 1146 would apply all non-discrimination provisions to religious colleges and universities that benefit from public funds except discrimination based on "religion." This means that religious schools cannot discriminate on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code. SB 1146 significantly changes Section 66271 of the Education Code by removing the current exclusion of educational institutions "controlled by a religious organization if the application would not be consistent with the religious tenets of that organization."

Secondly, SB 1146 would require colleges that have applied for exemptions to the Federal Title IX non-discrimination provisions on the basis of sex to publicly disclose this fact. Currently the Federal government requires institutions that wish to obtain federal funds to seek a waiver from Title IX non-discrimination requirements. The intent of this portion of SB 1146 is to give LGBT students and others fair warning before they attend that they may be subject to discrimination. In turn, this disclosure could provide prima facie evidence of discriminatory intent or allow litigants to target these institutions. Institutions that are not currently participating in the waiver program might be susceptible to both federal and state actions if they discriminate in other ways such as disallowing LGBT clubs on campus. (A listing of universities that have applied for and/or received Title IX exemption including their requests and the Federal response letter for each is available from the U.S. Department of Education and only 4 are in the state of California. It is noted that the three Seventh-day Adventist colleges and universities in California are not listed as having sought Title IX exemptions.)

Thirdly, SB 1146 would also add section 66292.8 to the Education Code which states that SB 1146 "shall not be construed to prohibit students from seeking civil remedies under the provisions of this chapter for discrimination." Getting past the double-negative in the text, "shall not be construed to prohibit," this means that students can sue for money or an injunction if they think they are being discriminated against by a religious college or university. If they happen to sue an institution that is disclosing its Title IX exemption, the fact that institutions have exercised a Federal right to an exemption could be used as evidence against them in state court.

In Summary First, SB 1146 will require religious colleges and universities to adopt policies of non-discrimination on the basis of sexual orientation in order for students to receive state-funded scholarships under the Cal Grant program. Secondly, SB 1146 will require these institutions to give notice if they have requested an exemption to Title IX. Thirdly, SB 1146 will permit lawsuits against institutions that are perceived to discriminate on the basis of sexual orientation regardless of whether they accept the Cal-Grant scholarships. The bill will not apply to programs designed for students who want to become members of the clergy or other specifically religious careers.

What’s Next? For the past few years, we have been tracking attempts by various interests to secularize California's religious colleges and universities. In the past, accepting new bond programs seemed to be the most direct avenue of government control, but SB 1146 expands this scenario by implicating institutions that participate in existing grant programs and tacitly encouraging litigation against institutions that discriminate as a tenet of their faith.

Assuming that SB 1146 passes and is signed into law by Governor Jerry Brown, California's religious colleges and universities will be put to the test. They will have to decide whether to refuse to comply and litigate the issue, forgo benefits from significant state funding, acquiesce and modify their non-discrimination policies, close down, or move out-of-state.

This legislation will likely soon lead to litigation in two ways. First, students may file lawsuits under a newly enacted Section 66292.8 of the Education Code claiming discrimination. Second, institutions may pre-emptively file lawsuits claiming that their exclusion from the state grant program constitutes violation of the Free Exercise Clause, to which their opponents might respond that provision of such funding violates the Establishment Clause.

Institutions that argue that they have a continued right to discriminate on the basis of their religious beliefs would still have arguments that they could apply in defense of their practices.

The argument over the competing clauses of the First Amendment could hinge on the issue of whether a non-discrimination provision would trump the equal protection argument that the government cannot use an issue of faith to discriminate in the provision of benefits to students who attend private religious schools, or against religious students on public campuses.

The Supreme Court has previously ruled that religious access to public funding does not violate the Establishment Clause. For instance, iIn Agostini v. Felton, 521 U.S. 203 (1997) students attending religious schools were found eligible for federal remedial assistance, and in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), a Christian student organization was found eligible for activity funds at a public university.

However, the Ninth Circuit, which includes California has been less hospitable toward claims of religious schools to public funding. In the case of KDM v. Reedsport School District, 210 F.3d 1098 (2000) relied on Employment Division v. Smith (2000) to determine that the free exercise rights of a blind student with cerebral palsy were not impermissibly burdened when the state declined to provide special education services to him at a religious school campus. The Court recognized that the regulation did in fact discriminate against religious school students by treating them differently, but that this discrimination did not actually burden the free exercise rights of the student or his parents.

Applying this case to the SB 1146, the Ninth Circuit might argue that the free exercise rights of a religious college in California are not impermissibly infringed upon when students of that college are denied funds because that college discriminates based on sexual orientation.

Another issue that would likely be litigated is whether the state can treat the rights of religious institutions to discriminate based on religion and sexual orientation differently. The logic is somewhat like an Escher staircase – can a state prohibit discrimination by sexual orientation while simultaneously permitting discrimination by religion, when a tenet of that religion requires discrimination by sexual orientation?

There is much confusion throughout the United States on how to manage the connections between state funding and religious institutions. This fall, the Supreme Court will hear a case on the issue of whether religious schools should be able to force a state government to abandon a state constitution prohibition on funding to religious institutions and to provide the religious schools with generally available benefits. See Trinity Lutheran Church v. Pauley this fall.

Of course, some will argue that access to a state grant program by an institution that discriminates based on sexual orientation and access to a state program for resurfacing preschool playgrounds are fundamentally different. However, the same issue exists regarding whether a state can be compelled to provide funding that will ultimately benefit parochial institutions that still reserve the right to discriminate against other groups.

If passed, SB 1146 will face litigation as religious institutions contend that the state is unconstitutionally imposing a condition on religious institutions with the intent of pressuring them to compromise their free exercise of religion. The state could make a determination to only fund public schools with the grant programs, but when they open the program up to religious and secular private schools, the state cannot use this leverage to punish now grant-dependent religious schools that refuse to abandon their free exercise of religion.


NOTE: To clear up some confusion, SB 1146 is similar in intent to AB 1888 (Low) but is not the same bill. AB 1888 would require institutions that receive Cal Grants to certify that they would not discriminate against potential students, students, or faculty by sex, sexual orientation, gender identity, or gender expression, and not apply for a waiver from the Federal Title IX non-discrimination requirements for receipt of federal funds. AB 1888 might include a “grandfathering” provision that will not cut off existing Cal Grant funding. This bill is currently held under submission in an Assembly committee and will likely remain dormant if SB 1146 passes.

Michael Peabody, Esq. is editor of ReligiousLiberty.TV, an Adventist jurisprudence website celebrating freedom of conscience where this article first appeared. It is reprinted here by permission.

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This is a companion discussion topic for the original entry at

The vocal evangelicals. Are to blame . they spew hate and damnation to an intolerable level. Tom Z


Funding will be cut if Christian colleges do not embrace homosexual relationships on campus. If the college can survive that, then new laws will soon make it a crime to uphold Christian values on Christian campuses.

I’ll have to disagree with the author…it is hardly discrimination for a God-honoring college to discourage homosexual relationships on THEIR CAMPUSES!

If a student wants to get into homosexual relationships, then why not go to a school that celebrates that already? Simple.

I hope that no college that calls themselves “Christian” gives in to these unreasonable demands.


Pro tip: use the terms trans or transgender. Not “transgendered.”


California’s three Adventist colleges/universities: Loma Linda University, La Sierra University, and Pacific Union College all accept openly LGBT students. If they are going to not treat students equally, it should be known. They are receiving federal and state funds, this bill would further protect LGBT students. If the schools are going to be blatantly discriminatory towards LGBT students, they should lose state and federal funding and be listed, so that potential students and families can take that into consideration when applying for further education.


Several questions:

First, this report speaks at the beginning of “faith-based sexual conduct rules,” yet for the rest of the article speaks of the proposed California law forbidding discrimination on the basis of sexual orientation.

Does the proposed law make a distinction between conduct and orientation? If not, would the passage of this law mean religious schools would henceforth be forbidden to make or enforce rules, not only against homosexual conduct, but also against those aspects of heterosexual conduct which violate the institution’s religious beliefs, such as premarital sex and adultery?

Also, how might the proposed California law, if passed, be affected by the recent unanimous U.S. Supreme Court ruling in favor of Houston Baptist University and East Texas Baptist University, permitting these schools (and by implication other religious schools) to discriminate on the basis of their faith in the formulation of their health plans? See below:

From my perspective, it is difficult to see any difference at all between a religious institution discriminating on faith grounds in the employment and discipline of professors, and that same institution requiring students to abide by rules of private conduct (including sexual conduct) based on the institution’s religious beliefs. The Biblical prohibition regarding homosexuality, which Seventh-day Adventists and other conservative Christians endorse, says nothing about orientation. It is about conduct only.

If a religious school can legally hire and fire staff based on its religious tenets—a principle which recently was also upheld unanimously by the U.S. Supreme Court in the 2012 Hosanna Tabor case—how can that same school be legally forbidden to regulate the conduct of its students based on those same tenets?

Perhaps Michael Peabody could offer some thoughts with reference to these questions.


Adventist colleges and universities in the NAD have been hiring non-SDA teachers for a number of years. They’ve done this with the excuse that these teachers were only part-time. So this may be the day of reckoning for this inconsistency. Either hire ONLY Adventist teachers, or quit discriminating by hiring some “sinners” but not others.

Our colleges and universities have also hired lesbians in committed relationships for decades. After 20+ years in Adventist higher education, I know this first hand. They were just seen as two “old maids” living together, while many of us knew otherwise. And “the church” looked the other way. No one asked whether these women had a sexual relationship or where they slept. On the other hand, these institutions wouldn’t have hired two men living together. And they would never have respected the privacy of these men like they have the women. I call that discrimination!

Students in Adventist colleges have been having sex outside of marriage for decades (Bb Yeaton, etc.). Most likely off campus. If you don’t believe that, I’ll be amazed. So why call out gay and lesbian people who are thought to be having sexual relationships? What is the difference?

Looking the other way and making excuses for discriminatory hiring needs to stop! Is this unfortunate legal “threat” going to bring a day of reckoning?


Did you not notice that this law is for California only? It affects only students attending colleges that accept Cal-Grant scholarship, not other states.

“He who dances to the piper, pays for the tune.”

More tnat 60 years ago academy and college dormitories only had one double bed for two students. Of course, this never allow same sex relations,:innocent:


Jonathan, you must be totally kidding? La Sierra went to great lengths to disallow a LGBT club for religious reasons in 2012 and I’m pretty sure they are continuing to discriminate against them today. Yes, they let us on campus but we can’t be who we are.

They also didn’t apply for an exemption to Title IX so they are now bound by state and federal law to treat us with equality. They are totally like sitting ducks for a lawsuit. Bring it on!


Yes, Elaine, it affects only California, but it’s bound to spread further. I am against this form of legislative intimidation that will only lead to more litigation, and threaten to close our SDA colleges if they don’t buckle under to ever widening demands by lgbt activists. While I am gay myself, I have been uncomfortable the way some gays are trying to use government force to eventually drive anyone who does not fall in line out of business.



I am totally in agreement with you that SDA LGBT students should not be attending Adventist schools, but for very different reasons than you state.

Self esteem and mental well being are so paramountly important to late teens and early twenty somethings.

Adventism has such overtones of homophobia, shunning, shaming, blaming, and general rejection, no matter how subliminal, I would hesitate to send any LGBT family member of mine to endure such an ambiance.

LGBT taxpayers should have every expectation under both federal and state law, that they will be given absolutely equal treatment of equality under the respective constitutions.

As Elaine Nelson, who always “hits the nail on the head”, so aptly said in her posting: “He who dances to the piper pays for the tune”

That said, I am sad for Adventist students who will be financially adversely affected by this mandate.

In researching US ( and international) colleges for my entering freshman grandson this spring, I was saddened to see a ranking of those colleges who had graduated students with the most student debt.

Regrettably of the four thousand plus colleges in USA, three SDA colleges ranked in the TOP FIFTY of those colleges whose graduates had the most student debt, while regrettably NONE ranked in the top for academic excellence!

Adventist colleges are very reasonable compared to IVY LEAGUE tuition rates.
However, the Ivy League schools, and other prestigious colleges are so well endowed financially that a family earning less than $100,000 a year, can expect
to have their student not pay ANY tuition — they would be fully funded by grants and scholarships! Of course one has to have premier academic achievement to be accepted at these schools.

My own grandson has been given a considerable scholarship even though he is attending a public university not in his state of residence.

No wonder enrollment of Adventist students is declining at our schools. Their families simply cannot pay the tuition. Fortunately, the enrollment of non Adventist local, and international students has helped “the bottom line”

Since our colleges were founded in the “horse and buggy age” pre-interstate freeways, pre-automobile, pre-air travel, maybe it is time to close any Adventist college with an enrollment lower than two thousand, and have just a few large institutions (like the Mormons do with Brigham Young University)?? A larger college may be able to consolidate costs to achieve lower tuitions.

Prospective students, with modern cheaper travel, do not have to have an Adventist college “in their back yard”.


Having EMPLOYMENT Standards are different than what it means to accept Public Tax monies for student attendance.
Public Tax monies are there for any educationally qualified person. That IS High School Graduate. ANY High School Graduate.
An Education Center above High School can discriminate. The attending students will be those getting financial assistance from NON-PUBIC TAX Monies. And this is OK.

When my daughter attended Southern, I was making TOO MUCH Income for her to qualify for public student loan assistance. So she borrowed money from a PRIVATE student loan corporation. She has had her degree for several years. A couple of years ago I took $30,000 out of my 401K and paid toward her loan repayment. [her part of her inheritance, early]


I hope it passes.

There are two main provisions of the law:

  1. If you choose to discriminate and you ask for a Federal exception under Title IX or the state’s similar law, then you have to report that to the state and describe why and how you’re discriminating for the public to review.
  2. I you choose to discriminate, then you don’t get to use public funds to run your school.

If a college wants to use public funds, my tax dollars, then I don’t want them to discriminate. Most other tax payers feel the same way.

If a college wants to discriminate, that’s fine. But, it should not use tax money from people who don’t agree with its discriminatory policies. Which is almost everybody these days.

Hopefully soon it will be illegal for it to do so.


Tom, I respectfully disagree with your characterization of “vocal evangelicals.” While there are those in and out of Evangelical churches that are indeed in general “hareful” to LBGTQ, I suggest it is not “hateful” to sincerely put forward that one believes scripture does not allow for LBGTQ behavior. That is indeed a “long term” religious held “objective” belief not to be considered hateful anymore than it is “hateful” for such churches to argue “adultery” behavior is wrong… To be unkind to anyone, I suggest, could be reversed by calling one homophobic simply because they are following the dictates of their conscience.
As to secular liberalism’s progression some have seen this day coming for sometime and is the natural progression of evolving social views trumping genuine held long term religious beliefs.
Supposedly, the argument begin by saying federal monies could not be denied “Students Rights” for federal funds just because it was a religious institution as ruled by the Supreme court… So now California it seems chooses NOT to say it is a “StudentsRight” to receive funds in a religious institution. They Calif., choose to say any student should be allowed to go to any institution they choose regardless of that’s institutions genuinely held belief. Secondly they plan by litigation to make it particularly painful to those who have claimed exemption from Title 9.
It would seem to me that an argument could be made that Calif. violates the 14th Amendment by requiring obstacles not allowed in a “students” rights to receive funds as allowed under federal grants.
It seems to me it is obvious that Calif. seeks to be punitive to religious institutions and Students in Calif. that legitimately hold certain religious tenants. Those students not choosing to go to such “bigoted” institutions in their mind “are not forced to” and it is not an unnecessary burden for them to go elsewhere. What the state is wanting to do is to eliminate aide to STUDENTS who do want to go to such religious institutions. So where is the “open minded mentality” we are often told/forced to believe that “liberal/progressives” have. Where is the freedom of religious thought and tolerance they so forcefully call upon from others to have? What physical harm is imposed by all concerned to attend the institution most fitted to their understanding?
The “entering wedge” of stating it is a students right to utilize funding for ones education in a religious institution has now been “changed” to a students right to go to any institution of their pleasing even if their behavior may be in opposition to that institution. Government is often good at changing the rules once enticed and hooked on funding as some suggested long ago but were met with laughs. Laugh no more!
Pat Travis


Regarding a recent development on this issue, I am appalled by Alan Reinach’s Church State Council pro-discriminatory screed against SB 1146 which has been lately distributed in church bulletins. This tract decries “a blatant attack on the right of religious colleges and universities to BE religious … by eliminating the right [the ‘right’???] of such institutions to discriminate” on the basis of gender identity or orientation. The logic here, if any there be, escapes me.

As far as I know, BEING religious means adopting and following the Golden Rule. Far from demanding that adherents discriminate against others, the Golden Rule is antithetical to discrimination.

As I read it, the Church State Council explicitly claims that one MUST discriminate against others in order to BE religious, making one tantamount to the other. This constitutes a profoundly offensive defamation of religion itself … and it has been offered up to the church community with no rebuttal whatsoever.

It is terribly ironic that Adventists – who fiercely fight discrimination on account of their Sabbath-keeping or for any other reason – want to insist that being free to discriminate against others is somehow fundamental to the very operation of a religion. This incongruity deserves some careful consideration.

I am unaware of any governmental agency in the US interfering with the ability of religious institutions to preach and teach whatsoever they will, so this – fortunately – is not at issue. I thank God that I live in a country in which I am free to choose a religion for myself and to comport myself accordingly. But (it should go without saying), choosing a religion for myself is not to obtain a license to discriminate; neither should universities be granted a license to discriminate. It is high time to eliminate Title IX exemptions and exemptions carved out in the “Equity in Higher Education Act” of the California Education Code.

If institutions fear court challenges, the remedy is simple: don’t discriminate; follow the law like everyone else.

I hope that the Church State Council’s gross misrepresentation of the nature of religion – and its utter disregard of the Golden Rule – will soon be addressed and put right from pulpits where this tract has been distributed.


Recheck how things are currently…changes have been made.

A very Christlike attitude and response.

The supporters of the homosexual lifestyle should enjoy their ascendancy while they can. When the religious right eventually gains control in this country, I suspect that intolerance will take on an entirely different meaning.

Once uopon a time they built Cheyenne River Academy and Emmanuel Missionary College.

Once upon a time the Austrian Union bought a castle - it became the heartpiece of Bogenhofen, a seminary to educate ministers. And some years afterwards they bought a hotel, dedicated as retirement home for SDA - a very good purchase, not to say : a gift.

Times passed. Bogenhoden now has a college for “maior minors” (14 - 18), housed in two dormitories. and since July 1, 2012 the “Voklsanwaltschaft” is - EU - norm - entitled to control the obesrvations of “human rights” Are the kids forced to go to worship ? Can they - whenever, day and night around, leave their dormitories ? What may be reported to the kid parents ? And sex is a human right : How coul Cissy get back into her room after having left the boys dormitory at 2 a.m. ? And are they urged to attend special religious services ?

The same with the retirement home, which by the years became a nursing institution. Are the disabled in some way forced - stimulated to attend wordhip ? How about a self - determined lifestyle ? Yes, and of course there must be the posiility to leave appartment, room and house at any time (anyway : electronic device to alarm the nursing staff , before one in delusion leaves the building is alowed: He kindly has to be asked to return - - -And once in a while an aged couple seeks more intimacy between them - how manage this acocrding to the Human Rights ? when they cannot “marry” because of the rental system here ?

And listen : Those with juridical Univeristy exams tell you, that no human being, still able to make free, deliberate decisions, is able to give up human rights. Please tell me what to do : If I am in delusoty state, please lock me up ! I do not want to freeze to death out of the house in the near woods !


You hit the nail on the head…brother!

America is nation of litigation. To where lawyers enter, tyranny begins. Only Americans can hurt Americans. The greater the truth the greater the libel. The United States is the greatest law factory the world has ever known. America Adventism to all its SDA educational institutions to its GC and NAD Presidents and Administrator have contingent of lawyers hired, mediating another another lawsuit, not an in-house transparency, to the littlest insignificant John Doe the adventist his tithes contribution to his local church to the General Conference. They the enchelons never ever mentioned they have top lawyers defendant enforce the ten commandments attacked congress forty millions plus laws. Where law ends, tyranny begins.