Guest post by Michael A. Olivas
Conservative religious groups have shown concern over the Supreme Court decision in Obergefell v. Hodges, a case that has resolved the question of whether the U.S. Constitution establishes a right to same-sex marriage. They fear that their current practices and student codes might run afoul of the public policy theory from Bob Jones University v. United States, and that the Internal Revenue Service will disallow their tax exemptions. If this did occur, then the colleges would have a genuine test of their core principles, and if they do not comport with the “public policy” requirement for tax exemption, they should render unto Caesar or surrender the public largesse that arises from tax exempt status.
The sky is not falling, and just as segregated schools have learned to live with students of color when they banned them before Brown, and just like men’s public colleges have thrived with the admission of women, so will these colleges—whose beliefs were no less well established than those of the conservative Christian outliers—live with this new constitutional reality and public policy. Schools should not act as parents and censor their students’ personal choices, especially ones that are legal and have no bearing upon student fitness. There will be exceptions, depending upon the state and status of the school, where they can ban or regulate otherwise-legal behavior, such as drinking on campus or engaging in smoking in their rooms, but we will all find a way to cope with these core principles, maintain our appropriate standards, and educate our students. We should embrace the growing freedoms and opportunities.
I attended Catholic schools, colleges, and law school virtually all my life, and studied for eight years in Catholic seminaries. Yet I do not believe that religious colleges can be safe harbors against properties that are in accord with public policy and Constitutional protection. Indeed, they cannot have it both ways. Their most principled actions may be to surrender the oppressive yoke they feel robs them of their privilege, and surrender their tax exemption. They hold the true keys to their own principled way.
Michael A. Olivas is the William B. Bates Distinguished Chair of Law at the University of Houston and the director of the Institute for Higher Education Law and Governance. His most recent book, Suing Alma Mater: Higher Education and the Courts, published by Johns Hopkins, was chosen as the 2014 winner of the Steven S. Goldberg Award for Distinguished Scholarship in Education Law.