When an attorney for Bethel Christian Academy uses the phrase “religious hostility” to describe the state of Maryland’s decision to deny its participation in a private school voucher program, she is echoing the language of the Supreme Court’s last major case pitting gay rights against religious liberty: the Masterpiece Cakeshop case from Colorado. That’s no surprise, given that the school is being represented by the Alliance Defending Freedom, which also represented the baker in the Masterpiece Cakeshop case. But it’s a false comparison. Maryland’s actions in this case, and the issues involved, are wholly different from what happened in Colorado, and the Masterpiece Cakeshop decision gives every reason to believe that the state will prevail in this case.
The facts at hand are these: For the last few years, Maryland has provided limited scholarships for low-income students to attend certain private schools (religious or otherwise), provided that those schools meet various requirements including a prohibition on discrimination “in student admissions, retention or expulsion” or other forms of discrimination “based on race, color, national origin, sexual orientation or gender identity or expression.” Legislation establishing the program says a school found out of compliance with those terms would be required to return the scholarship funds to the state and could be banned from participating in the program.
Bethel’s student handbook contained language stating the belief that marriage can only be between a man and a woman and that God assigns a child an immutable gender at birth. “Faculty, staff and student conduct is expected to align with this view,” the handbook says. “Faculty, staff and students are required to identify with, dress in accordance with, and use the facilities associated with their biological gender.”
The board that oversees so-called BOOST scholarships deemed that language a violation of the law on the grounds that “a non-heterosexual student may reasonably view the policy as one that allows denial of admission or discipline or expulsion on the basis of his or her sexual orientation.”
In an op-ed in The Sun this month, Bethel’s principal, Claire Dant, wrote that the school “does not turn away any student because of their sexual orientation,” does not “require students or parents to agree with our religious convictions” and does not “browbeat those convictions into the children entrusted to our care.” She accuses the state of punishing Bethel for its beliefs and says that’s exactly what the Supreme Court said government can’t do in the Masterpiece Cakeshop case.
Not quite. A quick recap of the Masterpiece Cakeshop case: In 2012, a gay couple asked Jack Phillips, the proprietor of the shop, to make a wedding cake for them, and he refused, citing his religious belief that marriage is only between a man and a woman (which at the time was also the law in Colorado). The couple took the matter to Colorado’s Civil Rights Commission, alleging that the refusal violated the state’s public accommodations law. Mr. Phillips said being forced to make the cake would violate his First Amendment rights of free speech and free exercise of religion.
The Supreme Court’s eventual ruling in Mr. Phillips’ favor did, as the Bethel plaintiffs assert, turn on a finding that the state was hostile to the baker’s religious beliefs. But what that meant in his case was not just that the commission ruled against him — indeed, the court recognized the validity of the state’s interest in protecting the dignity of gay people — but that in doing so, members made statements that were directly dismissive of and hostile to his religious beliefs, and the majority found its action was inconsistent with how the commission handled other cases in which bakers refused to make cakes with anti-gay messages.
That’s quite different from what happened here. For starters, we’re not talking about a conflict between an individual businessman’s religious belief and a state’s public accommodations law. Here, it is a question of whether the public’s tax dollars will be used to subsidize speech counter to its values and counter to the explicit terms of a duly enacted law. The state did not display hostility to Bethel’s right to hold and express its views on gay marriage and gender identity but simply ruled that its publication of them in its student handbook violated the terms of a program that Bethel voluntarily entered into.
And its application of that standard is entirely consistent. The BOOST board reviewed the handbooks of every institution receiving vouchers and took the same action against several other schools. Some of them chose to remove the language from their handbooks and were reinstated, some did not and weren’t. We recognize that paying the state back might be difficult for Bethel, but those were the terms of the program. Bethel knew them (or should have) before deciding to participate.
There is every reason to believe the state will prevail in this case. But if for some reason it does not, we agree with Del. Maggie McIntosh that Maryland should then drop the program. That would be a shame for the students who have gotten educational opportunities that would otherwise be unavailable to them and for the schools that have complied with the terms despite, in many cases, sharing Bethel’s views about marriage. But the state has a legitimate and compelling interest in ensuring that the public’s funds are not used to subsidize discrimination.