Recently, the ABA announced that it was reviewing a formal complaint against BYU Law School from the FreeBYU group. The group is highly critical of BYU’s policies regarding LGBTQ individuals, and also BYU’s policy of excluding students who have been excommunicated and stopped participating in the Church.
There are two arguments in particular that I have heard made recently that I wish to respond to and refute.
The first is the notion that it is BYU’s policy that results in religious discrimination because it forbids students from freely exercising their faith. The second is the notion that since accreditation (as well as Federal student aid which I have heard some invoke as well) is not a right, punishing BYU for its policies does not violate religious freedom.
This post will address the first argument and a follow up post will address the second. I am aware that much has been written on this subject, by scholars far more illustrious and talented. But I nevertheless felt impressed to add my voice in defend of BYU’s institutional religious freedom.
There is some irony to the first argument. Those who are hoping to effectively destroy one of the largest religious schools in the country are invoking religious freedom to do so. And there is of course also some validity to the complaints. Certainly, an individual’s freedom to leave the LDS faith is circumscribed when they choose to attend BYU. But ultimately, this argument belies a lack of understanding of the vitality of Institutional Religious Freedom.
Elder Robert D. Hales in the April 2015 conference laid out four “cornerstones” of religious freedom: 1) Freedom to believe; 2) freedom to share one’s faith and beliefs with others; 3) freedom to form religious organizations; 4) freedom to live ones faith both in the public and private sphere.
Those who see BYU’s policy as a violation of religious freedom are focusing on the first cornerstone to the exclusion of the third and fourth cornerstones. Religious freedom means not only the freedom to belief as an individual, but also necessarily the ability to come together with other like minded believers and form institutions for religious worship and education. And by necessary corollary, this right also comes with the necessity to control membership and admission standards.
Nor does forming a religious school change the importance of this function. BYU of course prides itself as a school with high academic standards, but it is something far more than that. It is an arm of the Church and a place for like minded students to come together and learn in a morals and values rich environment. In order to create such an environment, BYU must be able to choose its employees and its students.
The Supreme Court in its unanimous Hosanna-Tabor decision echoed the importance of these principles. In that case, the Supreme Court found that both the Free Exercise Clause and the Establishment Clause of the U.S. Constitution protect the ability of religious schools to hire and fire teachers (“ministers”) freely and without regard to employment discrimination laws. In his majority opinion, Chief Justice Roberts went back to the Magna Carta as a source of institutional religious freedom. He noted that the First Amendment was adopted upon the backdrop of a desire to prevent government “from interfering with the freedom of religious groups to select their own.” Unlike other neutral and generally applicable laws that impact religious conduct, “government interference with an internal church decision that affects the faith and mission of the church itself” is facially invalid under the Constitution.
Thus, under our Constitution, institutional freedom is given special protection from interference and control. Moreover, this freedom goes above and beyond the general right of freedom of association available to secular groups under the First Amendment. This is in recognition of the profound importance of religious organizations in the lives of believers. Organized worship is not just a meaningful expression of shred ideas, but it is essential to individual worship and to deeply held notions of salvation. For members of the LDS Church this should be apparent as we view the Church as not merely a collection of believers, but as the Kingdom of God on the earth.
It is because of the profound significance and importance of institutional religious worship that the attacks on BYU regarding religious freedom are so misguided. The LDS Church places a high value on education (both religious and secular), and so has formed a school with a profoundly religious mission and a commitment to teaching “law in the light of the Gospel.” This commitment is seen by the leaders of the Church as part of the Church’s religious mission in the world. And part of that mission must be the ability to control and regulate the message that is taught and also who attends.
A church can excommunicate its members who disagree or leave and must have the power to do so. The argument that disciplining members violates their religious freedom strains credulity. But for some reason the argument seems stronger when applied to a school. Perhaps it is the fact that removal from the school leads to more real world consequences such as loss of tuition or credits. Nevertheless, a religious school just like a Church must be able to control who can attend.
One last point on this topic: because forming institutions is a necessary cornerstone of religious freedom, it also follows that binding oneself to the teachings and ecclesiastical leadership of an essential part of religious freedom. When we join a church or chose to attend a religious school, we exercise our individual religious freedom to accede to the ecclesiastical judgment of the Church on questions of doctrine and membership. If Church’s could not excommunicate members, then individuals could not fully exercise their freedom to join an institution that has that power. There are many schools, even many religiously affiliated ones, that do not have a religious test for attendees. By attending BYU, one is able to exercise one’s faith in favor of an institution that can and does impose religious qualifications. Attending BYU is an expressive act of faith, commitment, and trust in the ecclesiastical leadership of the Church. In this way as well, the individual who attends has been able to exercise his faith in a profound and meaningful fashion.