Squaring Faith and Sexuality: Religious Institutions and the Unique Challenge of Sports

The solicitude traditionally afforded to religious institutions to function within the tenets of their faith has recently come under increasing scrutiny, especially in the context of higher education. Distinctions based on sexual orientation or gender identity in particular are seen as illegitimate, especially when they operate to exclude LGBT students and faculty. Nowhere is the challenge of allowing religious universities the ability to develop central faith commitments without excluding LGBT people more evident and difficult than in the context of students-athletes, who are seen as the “face” of an institution. This Article examines the latitude religious universities have under existing law to infuse faith into their operations, and explores how these universities can foster faith communities that uphold their religious beliefs without excluding LGBT people. This Article argues that universities can treat LGBT student-athletes with dignity through common sense approaches that “reasonably accommodate” all student-athletes without endorsing conduct with which it disagrees. This Article begins by outlining the important — if incomplete — safeguards that insulate LGBT students and faculty from discrimination in higher education, including Title IX, Title VII, recent guidance extending those protections to LGBT individuals, parallel state laws. This Part examines the solicitude with which the federal law treats faith institutions but cautions that this autonomy, over time, may be called into question given the significant financial benefits enjoyed by religious universities.It then takes a walk across a university, starting at its gates (admission), through its chapel, to student housing, its student commons, the faculty lounge, and ending with the stadium and locker room facilities. Part II argues that universities have almost unlimited autonomy over quintessentially religious questions (as in its chapel), have considerable latitude over housing and facilities, but that this autonomy recedes when employment relationships are implicated. This Article contends that universities can foster a common ethos through conduct codes for students and faculty. Such codes are important for maintaining deliberate communities of believers and norming conduct around things like drinking alcohol and reserving sex for marriage. This Article argues universities can and should rely on “equal opportunity” proscriptions that all students, gay or straight, must follow. It recognizes, however, that even “facially neutral” proscriptions can operate to exclude LGBT students and faculty. For example, because some universities define “marriage” according to their faith traditions (i.e., recognizing heterosexual marriages only), civilly married same-sex couples would never meet a neutral religious tenet against sex outside of (a religiously recognized) marriage — having the effect of barring them from working at or attending the university. One overarching goal of higher education is to challenge our own preconceptions about those who are not like us. Diversity advances rather than defeats a first-rate education. Thus, this Article argues universities misstep if conduct codes have the inadvertent effect of operating as a backdoor exclusion of LGBT faculty and staff.