Eugene is exactly right. For many conservative Christian (Evangelical and Catholic) colleges, any intimate homosexual relationship would fall under a more general prohibition against sex outside of marriage. These schools believe all sex outside of marriage is unbiblical, a violation of one of the Ten Commandments as well as numerous New Testament passages. Such conduct is grounds for counseling, discipline, and potentially expulsion.
Furthermore, several Christian Colleges have gone back to the Dept. of Ed. to receive new exemptions from Title IX after the Administration announced in 2013 that it believes Title IX prohibits discrimination on the basis of gender identity. See, e.g., http://www.nytimes.com/2014/07/25/us/transgender-student-fights-for-housing-rights-at-george-fox-university.html?_r=0; https://www.insidehighered.com/news/2014/07/25/2-christian-colleges-win-title-ix-exemptions-give-them-right-expel-transgender. Such colleges have informed the Dept. of Ed. that their religious faith prevents them from granting transgendered students’ requests to be assigned to dorms based on their gender identity. Other schools have said that their students are subject to discipline for “persistent or conspicuous examples of cross-dressing or other expressions or actions that are deliberately discordant with birth gender.” In other words, there are already real conflicts between federal law (or at least federal agencies’ positions on federal law) and the religious convictions and practices of Christian colleges and universities. As Doug Laycock has noted, there is something new and earth-shattering about both the HHS Mandate involved in Hobby Lobby and the movement to constitutionalize same-sex marriage: And then there is Hobby Lobby, which has also been widely misunderstood. The owners of Hobby Lobby believed they were being asked to pay to kill babies. I wouldn’t characterize it that way, but if that’s what you believe, that’s a very serious thing. For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization. See http://religionandpolitics.org/2015/04/01/why-law-professor-douglas-laycock-supports-same-sex-marriage-and-indianas-religious-freedom-law/#sthash.EiHub8sx.dpuf. It is a really big deal that political figures today (including Solicitor General Verrilli and presidential candidate Hillary Clinton<http://www.nationalreview.com/article/417448/hillary-clinton-religious-beliefs-have-be-changed-accommodate-abortion-joel-gehrke>) are openly considering using the law to coerce religious groups into either abandoning or at least agreeing to violate their religious convictions—endorsing, paying for, or facilitating violations of bedrock moral principles like “do not kill” and “do not commit adultery.” Eric [cid:image001.gif@01D08344.F5D64720] Eric N. Kniffin, Of Counsel Lewis Roca Rothgerber LLP 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662 (T) 719.386.3017 | (F) 719.386.3070 eknif...@lrrlaw.com<mailto:eknif...@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, April 30, 2015 12:47 PM To: Law & Religion issues for Law Academics Subject: RE: Religious organizations, tax-exempt status and same-sex marriage Marty: I thought it was established that some colleges forbid sex by students outside of marriage. I assume that this isn’t a judgment about the civil law of adultery, but rather because they view such sex as deliberate sin. If so, why wouldn’t they “extend such rules to prohibit sex within a same-sex marriage”? Indeed, they’d probably just say, “we prohibit sex within what we see as a theologically permitted marriage,” which is to say opposite-sex marriage. Moreover, even if such universities are in practice uninclined to look closely at students’ sex lives, wouldn’t such universities be pretty unlikely to offer married student housing to same-sex couples? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, April 30, 2015 11:39 AM To: Law & Religion issues for Law Academics Subject: Re: Religious organizations, tax-exempt status and same-sex marriage The more I think about the details of this, the more I'm inclined to agree with Chip that the issue won't arise, even 20 years from now. After all, if there are few, if any, colleges in existence today that discriminate against gay students in any way, it's hard to see how there would be any Bob Jones analogues around a couple of decades from now. What about in the context of employment? Well, Congress will enact ENDA sometime in the next 20 years (perhaps much sooner). So that, in and of itself, will get rid of employment discrimination, save for whatever the ministerial exception exempts. The Court's judgment on SSM will have no bearing on it at all. And the IRS will have no occasion to consider withdrawing tax-exempt status, since there won't be any discrimination left to consider. Am I missing anything? On Thu, Apr 30, 2015 at 9:26 AM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Thanks, Marty, for that answer and for understanding my mis-written question (I meant to ask "what do the rules permit different sex couples to do that same sex couples may not do?", but I mangled it in the earlier e-mail.) And I think Marty has identified the only likely discriminatory rule at a religiously conservative college -- whether sex is permitted between members of a different sex married couple but not members of a same sex married couple (because I assume such schools prohibit intercourse of any kind by unmarried students on campus.) On Thu, Apr 30, 2015 at 9:14 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: I seriously doubt that any school has, or will have, a rule that prohibits same-sex "dating," as such, akin to one of the Bob Jones prohibitions (set out below). I'd also be surprised if any schools will refuse to admit, or will expel, students who are gay, or who are "partners" in a SSM (again, akin to Bob Jones). Several schools, however -- Notre Dame included -- have rules generally prohibiting students from having sex outside of marriage. I wonder whether any of those schools will extend such rules to prohibit sex within a SSM, thus creating a facial discrimination.
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