A Limited Victory for Religious Liberty: Five Lessons from the California Lutheran High School Case
Martin Luther taught a doctrine of the two kingdoms: the church which Lutherans call the “kingdom of the right,” and the state which Lutherans call the “kingdom of the left.” As he said in his letter on “Secular Authority: To What Extent It Should be Obeyed” (1523): “these two kingdoms must be sharply distinguished, and both be permitted to remain; the one to produce piety, the other to bring about external peace and prevent evil deeds; neither is sufficient in the world without the other.”
Lutherans try to steer a balanced position on church/state issues, certainly rejecting the radical separatist approach of groups like the American Civil Liberties Union, but also avoiding the theocractic tendencies sometimes found among other Christian denominations.
Lutherans try to steer a balanced position on church/state issues, certainly rejecting the radical separatist approach of groups like the American Civil Liberties Union, but also avoiding the theocractic tendencies sometimes found among other Christian denominations. It is fitting, then, that Lutherans should lead the way in American church/state relations, battling for religious liberty and for Biblical morality in the courts of the State of California.
The California Lutheran High School Association runs a private religious high school which is affiliated with the Evangelical Lutheran Synod (ELS) and the Wisconsin Evangelical Lutheran Synod (WELS). The school has a “Christian Conduct” code which forbids homosexual relationships. Two female students entered into a homosexual relationship in violation of the code, and the school expelled them in the fall of 2005. The students and their parents sued the school, claiming the school’s enforcement of the code violated California’s Unruh Civil Rights Act (Civ. Code § 51 et seq.) which prohibits business enterprises from discriminating according to sexual orientation. The trial court ruled in favor of the school, holding that the school is not a “business enterprise” and therefore not subject to the Unruh Act. The Court of Appeal of the State of California, Fourth Appellate District Division Two, affirmed the trial court’s ruling in January 2009. (Jane Doe v. California Lutheran High School Association)
This is indeed a victory for religious liberty and for the right of a Lutheran high school to enforce a code of Biblical morality that forbids homosexual conduct. But it is a limited victory, and we would be well-advised to consider the narrow grounds on which this case was decided and the things similar schools need to do to ensure that our religious liberties remain protected.
First, the court decided this case on statutory grounds, holding that the school is not a “business enterprise” and therefore outside the Unruh Act. If the terms of the statute had not been limited to business enterprises, the Act might have covered the school. The case would then have involved a direct clash between the state’s supposed interest in prohibiting discrimination based on sexual orientation, and the right of the school and those associated with it to free exercise of religion, free speech, and freedom of association. The decision gives us no indication how the court might have ruled in a case involving such constitutional issues.
Second, the court focused on the specific facts that established that the school is not a business enterprise: 1) its status as a nonprofit corporation; 2) its stated purpose “to glorify God by using his inerrant Word to nurture discipleship in Christ, serving primarily the use of our WELS and ELS congregations, equipping them for a lifetime of service to their Savior, their homes, churches, vocations and communities”; 3) its policy of limiting admission to Lutherans and to others “who are in harmony with the policies and principles of our school”); 4) the fact that funding comes from WELS and ELS church members; and, 5) a recognition that “the School’s religious message is inextricably intertwined with its secular functions.” If Lutheran schools and other Christian schools wish to remain outside the provisions of the Unruh Act (or similar acts in other states), they will be well-advised to adopt similar principles and policies.
The whole purpose of sending one’s child to a religious school is to ensure that he or she learns even secular subjects within a religious framework; otherwise, merely supplementing the child’s secular education with Sunday school or a religion class would suffice.
Third, the girls argued that the Constitution grants them a right of privacy which includes the right to engage in homosexual relationships, although neither privacy nor homosexuality is mentioned anywhere in the Constitution. The court noted that minors do have a limited right to privacy but that that right to privacy was considerably diminished when they enrolled in a private school that had a clearly-stated policy prohibiting such conduct. Christian schools would be well-advised to adopt clearly-stated codes concerning prohibited conduct and should also make sure that all students and their parents read the code and sign a statement acknowledging that they have read and understand the code and agree to abide by it.
Fourth, the court in this case seemed to have a better understanding of the mission of Christian education than do many Christians, stating, “The whole purpose of sending one’s child to a religious school is to ensure that he or she learns even secular subjects within a religious framework; otherwise, merely supplementing the child’s secular education with Sunday school or a religion class would suffice.” Many Christians seem to think Christian education is just secular academics with a thin coating of Christianity. But Luther understood it differently, declaring:
Above all things, the principal and most general subject of study, both in the higher and lower schools, should be the Holy Scriptures. ...
But where the Holy Scripture does not rule I certainly advise no one to send his child. Everyone not unceasingly occupied with the Word of God must become corrupt; therefore we must see what people in the higher schools grow up to be. ... I greatly fear that schools for higher learning are wide gates to hell if they do not diligently teach the Holy Scriptures and impress them on the young folk.
Finally, the California Lutheran High School case reveals that the secular world increasingly accepts homosexuality as a legitimate (even state-protected) lifestyle and regards opposition to homosexuality as the worst kind of bigotry and intolerance. A common bumper sticker reads, “Hate Is Not a Family Value.” Perhaps not, but I’d like to design a bumper sticker in response: “Moral Conviction Is Not Hatred.” We have allowed “homophobia” to become a household word, thereby marginalizing opposition to homosexual conduct and acquiescing to the notion that those who oppose homosexual conduct are mentally ill. We must make clear that our position on homosexuality is based squarely on the Scriptures, that it is consistent with the traditions of nearly every society in history, and that it is confirmed by solid medical evidence that the homosexual lifestyle is unhealthy and leads to disastrous consequences.
Let us thank God for this victory! But may it remind us that we must stand firm for the truth of God’s Word amid controversies, and be ready to defend the liberties with which God has blessed us in America. Let us also make full use of our religious liberty, not merely to identify homosexuality as a sin but all the more to proclaim the gospel of forgiveness in Christ’s name.
John Eidsmoe, a retired Lt. Colonel with the United States Air Force and a Colonel in the Alabama State Guard, is an ordained pastor with the Association of Free Lutheran Congregations, and Legal Counsel for the Foundation for Moral Law in Montgomery, AL.
Note: This article is provided for educational and informational purposes only and is not intended to constitute legal advice. Readers should consult an attorney for their specific needs.
TAGS: Civic Order, Religious Liberty, Created Male and Female, Chastity