Churches Attacked

Alan J. Reinach January/February 2004

fter midnight on the last day of the 2003 legislative session, the California legislature adopted a controversial measure to require religious institutions to provide the same benefits to domestic partners of employees as are provided to spouses as a condition of contracting with the state. Authored by an openly lesbian assemblywoman from San Diego, Christine Kehoe, Assembly Bill 17 appeared, on its face, to apply generally to all state contractors. Careful legal analysis determined that only certain religious institutions would actually be subject to the law. In short, the bill was a direct attack on those religious institutions that had moral and doctrinal objections to providing benefits to those engaged in a gay lifestyle.

That California legislators were dismissive of religious liberty concerns became apparent in lobby efforts to persuade them that AB 17 violated fundamental rights of religious autonomy guaranteed by the First Amendment and the California constitution. One legislator said bluntly: "This bill doesn't violate your religious freedom. You are still free to worship God in church." This legislator may have been more direct than some, but the attitude was representative. So long as you are free to worship God in church, it doesn't matter what restrictions are imposed on religious institutions. If you want to participate in public life, you must play by public policy rules.

Ironically, the Seventh-day Adventist Church State Council led the lobby effort to obtain an exemption for religious institutions. The irony is that the Adventist Church has tried to avoid the culture war legislative battles over gay rights. The church has never adopted any formal policies addressing the legal status of gays. Yet the conservative groups that usually oppose gay rights were largely absent from this battle, while Adventists were seeking to protect the autonomy of their hospitals and colleges. Although Adventist policy has long required avoiding dependence on government funding streams, this has become a practical impossibility with respect to health care and higher education. Such dependency has now made these institutions vulnerable to attack.

AB 17 represented just such an attack, shrouded in language that seemed to apply generally to all state contractors. In 1990 the United States Supreme Court ruled that religious freedom could be restricted so long as it was done "unintentionally" through laws that applied evenhandedly to all. Legislation intentionally targeting churches still violates the free exercise clause. The church state council put the California legislature on notice that AB 17 unconstitutionally singled out religious institutions, who alone would be subject to its provisions. This was because of a quirk in ERISA, the federal statute that governs employee benefits. ERISA prevents states from regulating benefits, but it specifically permits religious institutions to opt out. This opt-out provision was intended to protect their religious freedom. Ironically, it has now made these institutions subject to state regulation.

The bill was never about actually providing benefits to domestic partners. Religious institutions are entitled, under California employment discrimination law, to hold employees to religious lifestyle standards. Those who violate sexual ethics standards may be disciplined, even terminated; and so anyone actually seeking domestic partner benefits could lawfully be terminated. Thus, the bill could never really have been intended to ensure that domestic partners receive benefits. Moreover, from the standpoint of the religious institutions, the issue was never about money, either. They never anticipated that AB 17 would impose significant costs, even if employees applying for the benefits were not terminated. There are religious institutions such as hospitals that don't discriminate in hiring against gays. But the numbers of domestic partnerships among such employees are too small to make a fiscal impact.

The real concern was that AB 17 would require some religious institutions to adopt policies in conflict with doctrinal beliefs. The churches could teach whatever they wished about sexual morality on Sabbath or Sunday, but come Monday they would have to treat domestic partnerships as legitimate and entitled to benefits the same as married couples.

Gay rights rhetoric, invoking as it does the moral force of the civil rights movement, suggests where the pendulum is intended to swing. In the early 1980s the U.S. Supreme Court determined that in order to be eligible for tax exemption, a religious institution must be in harmony with public policy. The Court upheld an IRS decision to revoke the tax-exempt status of Bob Jones University because it had a policy that did not permit interracial dating by students. The Bob Jones case points to where the gay rights movement is headed: any church that does not recognize gay marriage will be stripped of its tax-exempt status, not to mention the right of its clergy to perform state-recognized weddings.

There is historical precedent for such speculation. In the nineteenth century federal policy effectively forced the Mormon Church to abandon its doctrinal teaching concerning polygamy. In the twentieth century the civil rights laws of the 1960s produced doctrinal change in the Southern White churches on the subject of race. Moreover, three Canadian appeals courts have recently struck down the traditional definition of marriage as a violation of the Canadian Charter of Rights. Canadian churches are already afraid of losing their legal status if they don't comply with the gay rights agenda. In the United States a backlash to the Supreme Court's decision last summer striking down a Texas sodomy law is already evident with the introduction into Congress of a constitutional amendment to protect the traditional definition of marriage.
Regardless of whither the pendulum swings, AB 17 sends a strong signal to religious organizations to avoid the temptations dangled by the "faith-based" funding initiative begun under the Clinton administration and vigorously pursued by President George W. Bush. Clearly it is dangerous for faith-based social service agencies to become dependent on government funds, no matter how free of strings such funds may be at the outset. Government funding too easily becomes a lightning rod for social policy.

AB 17 also signals both the willingness and sophistication of legislators to adopt language that appears to be "facially neutral" toward religion, while in fact targeting religion. Critics of the Supreme Court decision restricting free exercise clause protection to those laws that intentionally restrict religion have long contended that legislatures are capable of concealing "intent" in neutral language. Indeed, legislative intent is itself highly controversial. Legislators on both sides of an issue play games to ensure that bill language is sufficiently ambiguous to spin in their direction, and then insert analyses and letters into the legislative record in support of their own spin. From a judicial standpoint, determining legislative intent is a perilous effort.

Because the governor's budget office issued a report identifying AB 17's fiscal impact as significant, the bill could be passed only by postponing the effective date until 2007. This avoids any immediate fiscal impact, but it also gives lawyers ample time to prepare a legal challenge that is almost certain to come. No doubt such challenges will include claims under the First Amendment's establishment clause, since it is that clause that the federal courts have used to protect the autonomy of religious institutions.

AB 17 is more than just a bill coercing churches to violate their faith. It is more than just a frontal assault on the doctrinal beliefs of conservative churches with respect to homosexuality. It raises the question of how long the institutional separation of church and state will survive.


Alan J. Reinach, Esq., writes from Thousand Oaks, California. He is host of the Freedom's Ring radio program and President of the Seventh-day Adventist Church State Council.
Article Author: Alan J. Reinach

Alan J. Reinach is Executive Director of the Church State Council, the religious liberty educational and advocacy arm of the Pacific Union Conference of Seventh-day Adventists, representing five western states: Arizona, California, Hawaii, Nevada and Utah. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. Reinach is also a Seventh-day Adventist minister who speaks regularly on religious freedom topics, and is the host of a nationally syndicated weekly radio broadcast, “Freedom’s Ring.” He is the principal author and editor of Politics and Prophecy: The Battle for Religious Liberty and the Authentic Gospel, and a frequent contributor to Libertymagazine.