A new bill out of Kentucky protects the religious expression of students in public schools and universities, a move LGBTQ advocates and civil liberty organizations say could allow them to discriminate against fellow students based on their sexual orientation.
Senate Bill 17, signed Monday by Republican Gov. Matt Bevin, applies to public schools, colleges and universities. The bill permits students to express their religious views within their assignments, allows professors to include Biblical lessons in their teaching, and authorizes campus organizations to set their own rules regarding membership.
The legislation, which passed 81-8 with bipartisan support, also states “religious and political organizations are allowed equal access to public forums on the same basis as nonreligious and nonpolitical organizations.”
The bill is the latest in a wave of “religious freedom” bills — related to schools, as in Kentucky, or more broadly to religious groups — pursued by several states since 2015. According to the National Conference of State Legislatures, 21 states have enacted religious freedom restoration acts since 1993. Republicans in Congress said earlier this year that they planned to revive a 2015 bill — the First Amendment Defense Act — that would “limit the federal government’s ability to punish individuals and organizations who oppose same-sex marriage on religious grounds.”
President Donald Trump has sent mixed messages about his stance on LGBTQ issues since taking office. On Jan. 31, he signed an executive order pledging to protect the rights of gay, lesbian and transgender people in the workplace. But Trump and Education Secretary Betsy DeVos took heat last month for rolling back some Obama-era protections for transgender students.
Amber Duke, communications director at the American Civil Liberties Union of Kentucky, told the NewsHour that simply having equal access isn’t the issue. What’s at stake in Kentucky, Duke said, is the potential for discriminatory practices on the basis of race or gender to arise when it comes to membership rules.
“If there is a student organization that does not want students of color or LGBT students,” Duke said, “this law says that school officials have to give student groups the same level of access as others even if a particular group is not in line with the school’s diversity and inclusion policies.”
The bill’s language states that “no recognized religious or political student organization is hindered or discriminated against” regarding matters of internal affairs, determination of doctrines and principles, and selection of its members and leaders.
“It usurps the school’s authority to say we are not going to endorse this group’s activities by giving them financial resources or access to our facilities,” Duke said, adding that this bill could lead to inadvertent endorsements of these groups at Kentucky schools.
Read the bill below.
The bill, which has passed both the Kentucky Senate and House of Representatives, also states that student organizations have license to either admit or deny applicants “in the furtherance of its mission.”
The law comes in the wake of a Kentucky elementary school’s decision in 2015 to ax certain Jesus references out of a student production of “A Charlie Brown Christmas,” fearing that Scripture citations could spark a lawsuit.
Mat Staver, chairman and founder of the Liberty Counsel, an international nonprofit organization dedicated to advancing religious freedoms, told the NewsHour he doesn’t perceive the law as discriminatory toward LGBTQ students. Instead, Staver said, the legislation provides clarity for parents, educators and students on religious freedoms.
“I think it is a good bill that puts in writing what the law is,” Staver said, calling it a victory for the religious freedom of expression. “I think it’s a very positive development for religious groups and I think it could be a template for other states to follow.”
Other states have been developing similar legislation.
In Kansas, the “religious freedom bill” prevents universities from denying religious student organizations that require members to comply with their religious beliefs. Other ordinances are directly aimed at the LGBTQ community, such as North Carolina’s HB 2 bill, which bars transgender people from using restrooms that align with their gender identity.
Some major public universities in Kentucky do, however, include LGBTQ inclusive nondiscrimination policies, said Chris Hartman, director of the Fairness Campaign, a broad-based community effort out of Kentucky dedicated to equal rights. Hartman said the “climate and atmosphere on our university campuses is very inclusive, by all reports.”
Take, for example, Murray State University, which adopted preferred name policies for LGBTQ students. Seven cities in Kentucky have also passed local legislation that expands civil rights based on sexual orientation and gender identity.
However, Human Rights Campaign legal director Sarah Warbelow said the state’s religious freedom bill undermines the implementation of these kinds of inclusive “all-comers” policies, guidelines imposed at universities and high schools to deter discriminatory practices on the basis of race, sex, religion, sexual orientation or gender identity.
Warbelow also said it is important to consider history.
In 2010, the Supreme Court upheld in the Christian Legal Society v. Martinez case that the University of California would only offer funding and recognition to student groups that adopted “all-comers” policies.
Members of the faith-based group Christian Legal Society, or CLS, filed suit against the university after being denied recognition as a registered student organization. CLS bylaws denied membership to anyone who engaged in “unrepentant homosexual conduct,” or who “holds religious convictions different from those in the statement of faith,” according to court documents.
“The purpose behind the legislation in Kentucky is to undermine the Supreme Court case. It’s tying the hands of public institutions in that state from being able to adopt an ‘all-comers’ policy,” Duke said. “What is really sad about this is that it reinforces the false notion that being LGBTQ and being a person of faith are incompatible with each other.”
For Warbelow, there is still work to be done.
“What we know is that there are student groups, particularly those religiously affiliated groups that want to discriminate based on LGBTQ status or religious affiliation as well,” Warbelow said. “When you do away with ‘all comers,’ you send a message that LGBTQ students aren’t welcome to participate in the full scope of the educational experience.”
The NewsHour reached out to the Kentucky governor’s office for comment, but did not receive a response.