By Emily Cousins | Staff Writer
Under Baylor University’s health care benefits policies, an employee’s spouse can be added as a dependent only if the spouse is of the opposite sex.
The university’s health care benefits policy defines an eligible spouse who can be added as a dependent as “your spouse of opposite sex to whom you are lawfully married.”
Baylor’s recruitment policy does not specifically say they will not hire people who are in a same-sex marriage. All position announcements and advertisements include the following statement:
“Baylor is a Baptist university, affiliated with the Baptist General Convention of Texas. As an Affirmative Action/Equal Employment Opportunity Employer, Baylor encourages minorities, women, veterans, and persons with disabilities to apply.”
An employee who is gay, who wished to remain anonymous due to fear of intimidation, said the health care benefits policy is exclusionary and has no place at a Christian university.
“This insurance issue is not a secret. It is pretty out there, and I am concerned that LGBTQ students are going to look at that and go, ‘Nothing has changed,’” the source said. “My question is with marriage equality in place, is this insurance policy legal?”
Since Baylor is a private institution, it is not governed by constitutional law. However, Baylor does have to follow statutory law. This includes Title VII of the Civil Rights Act of 1964, which, according to the U.S. Equal Employment Opportunity Commission, “prohibits employment discrimination based on race, color, religion, sex and national origin.”
The Supreme Court ruled last summer to more clearly define what sex-based discrimination includes. In that case, Bostock v. Clayton County, Georgia, the Supreme Court ruled 6-3 in that discrimination based on sex under Title VII includes sexual orientation and transgender statuses.
“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions,” Supreme Court Justice Neil Gorsuch wrote for the majority. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Samuel Alito was one of the three judges who voted against the Supreme Court’s ruling to expand the interpretation of what discrimination based on sex meant. In Alito’s dissent, he wrote this ruling was not a victory for “individual freedom.”
“As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety,” Alito wrote.
Alito also wrote that courts might not allow religious institutions to discriminate based on sexual orientation or transgender status because of this new interpretation.
“Provisions of Title VII provide exemptions for certain religious organizations and schools ‘with respect to the employment of individuals of a particular religion to perform work connected with the carrying on’ of the ‘activities’ of the organization or school … but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection,” Alito wrote.
As a religious institution, Baylor does have certain exemptions from Title VII.
“Under Title VII, religious organizations are permitted to give employment preference to members of their own religion,” the U.S. Equal Employment Opportunity Commission (EEOC) said on its website. “The exception applies only to those institutions whose ‘purpose and character are primarily religious.’”
The EEOC also outlines in “Section 2: Threshold Issues” of their Compliance Manual, which gives guidelines on how to interpret and enforce federal law, when religious exemptions can and cannot take place.
“The exemption applies to all positions; however, discrimination is not permitted on any basis other than religion,” the EEOC said. “In addition, the exemption only applies to hiring and discharge, and does not apply to terms, conditions, or privileges of employment, such as wages or benefits.”
Baylor also affirms on its website it will follow Title VII closely.
“Baylor is committed to compliance with all applicable anti-discrimination laws, including those regarding age, race, color, sex, national origin, marital status, pregnancy status, military service, genetic information, and disability,” Baylor says on its website. “As a religious educational institution, Baylor is lawfully permitted to consider an applicant’s religion as a selection criterion. Baylor encourages women, minorities, veterans, and individuals with disabilities to apply.”
Baylor declined interview requests for a university representative and the Office of General Counsel. They sent the following statement in response:
“The University policies, procedures and plans are designed to comply with the University’s obligations toward its employees and students under all applicable federal, state and local laws and to be interpreted in a manner consistent with Baylor’s religious liberties. As a religiously controlled institution of higher education, Baylor is exempt from compliance with select provisions of certain civil rights laws, and Baylor is also exempt from prohibitions against discrimination based on religion.”
“As such, the University prescribes standards of personal conduct that are consistent with its religious mission and values and lawfully considers a person’s religion and conduct in the employment context. Baylor’s policy on sexual conduct is interpreted in a manner consistent with the Baptist Faith and Message. Such consideration also impacts benefits eligibility. Accordingly, employment benefits are afforded only to an otherwise qualified person of the opposite sex to whom an employee is lawfully married in the union of one man and one woman.”
Even though Baylor did not allow the Lariat to speak with the General Counsel, it did suggest Kelly Shackelford, president, CEO and chief counsel for First Liberty Institute, as a source because of his experience defending religious liberty.
Shackelford was not available for an interview, but he sent the following statement in response:
“There is almost nothing more sacrosanct than the right of a religious organization, like Baylor, to arrange its organization, benefits and requirements around its religious beliefs, including its Biblical definition of family and marriage,” Shackelford wrote. “Government interference in such matters is prohibited by both the Constitution and by federal law. Baylor has every right to make its own religious decisions and is protected in doing so. If the government were ever to attempt to infringe upon Baylor’s religious freedoms, we would be happy to represent them free of charge.”
However, lawyer Paul Carlos Southwick, director of the Religious Exemption Accountability Project, said the health insurance benefit policy denying employees to add a same-sex spouse as a dependent is illegal under Title VII, even at a religious institution.
“The only way that it becomes excusable is if there’s some kind of ministerial exception,” Southwick said.
Southwick said some religious high schools or elementary schools have employees that are considered ministers by the court, and then they are exempt from Title VII. This would include institutions like Catholic schools where nuns teach students their daily lessons.
“However, if they’re not considered ministers, then Title VII applies to Baylor. Under the Bostock decision by the Supreme Court, Baylor’s policy is illegal. If someone is an employee who, let’s say is the soccer coach, and they married someone of the same sex, or they’re a janitor or they work in the cafeteria, and they’re denied spousal benefits because their partner is someone of the same sex, that is illegal, and they can sue Baylor.”
In the Massachusetts court case Margaret Deweese-Boyd vs. Gordon College, the plaintiff, a social work professor, said she was denied tenure for her LGBTQ advocacy and criticisms of the Christian college’s policies concerning the LGBTQ community.
The Massachusetts Supreme Court ruled that Gordon College is a religious institution, but the plaintiff is not a ministerial employee, which means she does not fall under the ministerial exception.
The anonymous source who is employed by Baylor said the discrimination at the university is not coming widely from faculty, staff or students. Instead, the source said it’s coming from upper administration.
“Change is hard for some people,” the source said. “Change is very, very difficult; particularly when that change is going to challenge some long-held tenet in your belief system.”
The source also said there are other Christian universities, such as Notre Dame University and Texas Christian University, that prove Christian values can be held while also being inclusive of the LGBTQ community.
Both Notre Dame University and Texas Christian University have Diversity and Inclusivity statements on their websites that include “sexual orientation” when specifying minority groups. These universities also have official LGBTQ student organizations on their campuses.
“I do think we’re on our way there with both the Student Senate and the Faculty Senate saying yes to the charter the LGBTQ student group,” the anonymous source said. “That is a huge step in the right direction. There’s a tremendous amount of alumni support for this, and I think that a path has begun to be cleared for this change. All people at Baylor need to feel welcome, regardless.”
Three other LGBTQ employees at Baylor were reached out to for an interview, including those with same-sex spouses. However, they said they declined an interview for privacy reasons and out of fear of the university finding out their marital status.
Non-LGBTQ employees either didn’t respond or declined going on the record because they feared the consequences of speaking out.
