Tuesday, December 8, 2015

Witherspoon's blog has gone down the crapper

Nathan Swanson
Were Ryan T. Anderson not blocking me on Twitter I would inquire if he was still the editor of Witherspoon Institute's blog, Public Discourse. Lately the fare would best be described as “vomitarian.”

Today's polemic is titled “Collateral Damage: Same-Sex Marriage, Private Religious Schools, and Parental Rights.” The author is Nathan Swanson, described as a Minnesota attorney, who follows the long-winded title with a long-winded subtitle:
Same-sex marriage endangers not only religious liberty, but also the school choice movement. We need new laws to protect schools from being forced to adopt sexual orientation nondiscrimination policies in order to be eligible for voucher, tax credit/deduction, or educational savings account programs.

To the best of my knowledge, Nathan Swanson is Nathan Joel Swanson who graduated (third-tier) William Mitchell College of Law in 2011. In brief, upon graduation he worked for a small (six attorney) law firm. That only lasted nine months. Over the next two years he worked for two temporary/contract staffing providers. Since September, 2014 he has been employed by Target. This all screams “mediocrity.” The content of his polemic does nothing to dissuade me from that assumption.
In Obergefell’s aftermath, it is possible that the government will ask religious institutions to choose between retaining their non-profit tax status and retaining their beliefs. But the “collateral damage” will not stop at their sanctuary doors. Many churches, synagogues, and mosques also operate schools, and they will be the next targets. Of the 30,000 private schools in the United States, the Department of Education’s Private School Universe Survey found that 68 percent have “a religious orientation or purpose” and that 80 percent of private school students attend such a school. Such religiously affiliated private schools play a key role in the school choice movement—for now.
These schools are K-12 and what Mr. Swanson fails to mention is that more than one-third are either Catholic or conservative Christian. More importantly, 68% of these schools have fewer than 150 students. Indeed, 44% have fewer than 50 students. Swanson goes on to explain:
Obergefell may force private schools to decide between holding fast to their beliefs and maintaining their eligibility for school choice programs. Schools may be forced to close to avoid government scrutiny and interference in their faith. …
As proof of just how scary the world is Swanson offers:
… sexual orientation is not a federally protected class. However, some states prohibit sexual orientation discrimination in employment, public accommodation, and in other matters. States could therefore condition a private school’s participation in a voucher program on their agreement not to discriminate on the basis of sexual orientation. This could be a difficult proposition for the school if the religious institution with which it is affiliated believes that marriage is the union of husband and wife.
So “non-profit status” is not an issue? Only 14 states plus the District of Columbia have voucher programs. In Vermont and Maine, vouchers are only available to students who live in a district not served by a public school. Another six states focus their voucher programs on students with disabilities. Indiana requires that schools be accredited to be eligible for vouchers. Those small schools are probably not going to qualify. In Cleveland 60,000 vouchers are available to anyone in the district but low income families are prioritized. In other words nationally vouchers are not really at issue. Some of these 14 states and some municipalities within them do, indeed, prohibit discrimination based on sexual orientation or sexual identity. These are usually subject to a ministerial exemption.

The only controversies that I am aware of are with Catholic schools. Some of these are in litigation and a case could wind up at the Supreme Court. Common sense suggests that the marital status of a mathematics or history teacher is irrelevant to their job. It is usually precluded from being on an employment application. Administrators usually find out from social media or a newspaper announcement. Having said that, employers have an absolute right to regulate workplace speech. On the other hand, the Jesuit universities (Georgetown, Notre Dame, etc.) don't seem to give a crap. Most of them had partner benefits prior to Obergefell.

But wait. Maybe non-profit status is an issue:
Other precedents also pose problems. Bob Jones University v. United States (1983) established that the IRS can revoke a religious university’s tax-exempt status if a university adopts practices contrary to public policy.
BJU (no substitutes on those initials, please) was segregated until 1971. Then, until 1975, black students were only accepted if they were married. For another 25 years BJU declined admission to black students in interracial marriage and enforced a policy that precluded interracial dating. In 1970 the IRS regulations changed and prohibited tax-exempt status to educational institutions that had racially discriminatory policies. Dick Nixon's IRS (I could not resist the reference) made the determination to revoke BJU's tax-exempt status when the rules changed.

Irrespective of Obergefell the rules have not changed with regard to LGBT issues. There has been no notice of proposed regulation changes in the federal register with a “call to comment.” One of these days I might need to study the 1472 non-profit schools that have the phrase "Christian School" in their name but at the moment it's not necessary. As Swanson correctly points out, the Religious Freedom Restoration Act (particularly since Hobby Lobby might provide some cover should the IRS regulations change. He also points out (quite verbosely) that the ruling in Meyer v. Nebraska (the state was essentially prohibited from discriminating on the basis of foreign language instruction). Swanson sees the ruling as one for parental rights which, I suspect, is Christian mythology.

Mr. Swanson has a solution to what does not seem to be a problem:
The First Amendment Defense Act is a good start in addressing the threat to religious liberty and conscience rights at the federal level. States need similar policies, especially targeted to protect educational freedom. School choice advocates, irrespective of their position on same-sex marriage, should unite to preserve the religious liberty of private schools.
Simply stated the intent of FADA (which was a NOM chew-toy for awhile) is to license discrimination. Obama won't sign it. Nor would Hillary Clinton. Introduced last June, neither the Senate nor House version of the bill (S.1598 and H.R.2802 respectively) have made it out of committee. If the number of co-sponsors is relevant, the bills lack substantial support. In the Senate there are only 37 co-sponsors for a bill that will require 60 votes.

Mr. Swanson concludes:
In an age when faith is viewed with scorn and traditional views on cultural issues are seen as “hate,” passing legislation and advancing these ideas will not be an easy task. But this is a fight worth waging. We must protect constitutional rights, preserve sincerely held beliefs from the tyranny of the majority, and save quality educational opportunities for generations of children. By continuing the fight, school choice advocates can prevent any further “inversion of the original meaning of liberty” and spare students and parents from becoming “collateral damage” in the tide of cultural decay.
“Poor us!” We don't care about “traditional views” unless you try to impose them on public policy or you use them to bully or discriminate. As for constitutional rights, the Supreme Court has ruled that gay citizens have a constitutional right to marry. Swanson's point of view has nothing to do with Free Exercise. He is suggesting Free Infliction which is anathema to our culture and law. To suggest that discriminatory education is “quality education” seems contradictory as is waving the flag over “liberty.” The American flag stands for (among other things) liberty, diversity, fairness and equality.

This all brings me back to my first question. Who is editing this blog and what are his or her standards? Rooting for a bill that has virtually no chance of passing and no chance of being signed into law seems like a waste of bytes and bandwidth.

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