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Big 12 controversy poses questions for BYU and LGBT advocates, but not necessarily constitutional ones

First Published      Last Updated Aug 16 2016 12:52 pm

Gay advocates call the university policies discriminatory; supporters of the LDS Church-owned school equate the perceived attacks on its rules to religious persecution.

All sides agree that discrimination is at the root of the battle over whether Brigham Young University should be excluded from the Big 12 athletic conference over the Provo school's gay policies.

They just differ over who is facing discrimination.

Supporters of BYU, owned by The Church of Jesus Christ of Latter-day Saints, view the school's potential barring from the league — because of its religiously based rules about sexual behavior — as discrimination.

At the same time, advocates for lesbian, gay, bisexual and transgender individuals argue that BYU's ban on gay behavior discriminates against them.

Religious freedom is "in the eye of the beholder," First Amendment expert Charles Haynes says from Washington, D.C. "There is little conversation in this country across this divide and little effort to find common ways to talk about this that accommodates both sides."

Except in Utah.

"The so-called Utah compromise, which is unique in the nation," says Haynes, founding director of Religious Freedom Center at the Newseum Institute, "shows that we can cross our differences and work some of this out — if we try."

He is referring to a bill passed in 2015, when key lawmakers, top LDS Church authorities and gay-rights leaders pushed through a landmark measure extending housing and employment protections to the LGBT community while safeguarding some religious liberties.

"I believe, in our public life together, there needs to be room for all people to be treated fairly," Haynes says, "and also for religious schools to participate in a sports association."

Haynes and others agree, though, that the BYU-Big 12 debate is not a First Amendment question.

The private school has "no right to join" the Power Five conference, says Lynn Wardle, a church-state scholar and a professor at BYU's law school. "It's a free-association issue."

The real question, he adds, is whether "an association of respected and respectable colleges that wants to be taken seriously should refuse to admit a school because of its moral standards with regards to sexual behavior."

Wardle places the problem at the foot of "identity politics."

Universities are "getting lobbied hard by LGBTQ activist groups," he says, using the college's bid to join the Big 12 as "an opportunity to put pressure on BYU and embarrass it."

It is "foolish to think BYU would be manipulated," Wardle says, "into abandoning its moral standards."

Shutting out BYU from the Big 12 over its LGBT stance is not a "legal or constitutional issue," agrees fellow BYU law professor Frederick Gedicks. The league certainly has a right to choose its members.

As for religious freedom, he adds, even some proponents misunderstand that notion.

"It is the right to have even unconventional beliefs and practices," Gedicks says, "but it is not the right to have unconventional beliefs and practices and not be criticized or suffer social consequences for having them."

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