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Finally, some colleges might decide to stay in the program but reduce the risk of suit by becoming more “sectarian”: to admit only students who explicitly affirm all the college’s beliefs on contested matters. (This assumes the bill does not prohibit admissions preferences based on religious belief.)

In the future, this may increasingly become the legislative and judicial compromise in religious-exemption disputes: The organization will be permitted to demand uniformity of belief but forbidden to discriminate based on any other ground. That result would preserve some autonomy for religious groups, but only in very reduced form, and with a significant social cost. As I’ve argued here, religious groups that (1) reach out to serve non-members, but also (2) maintain a distinctive faith-based identity and standards, are especially likely to provide vigorous and valuable services.

What is the status of the bill? Is there a compromise that might be reached?

The state senate passed the first version of the bill, the version that threatened to bar a host of religious elements in colleges, on May 26 (see timeline/status). The altered version described above has now moved through one committee in the state assembly; the appropriations committee must still consider it, and as already noted, the sponsor has promised to make changes. If the assembly passes it, the senate will have to approve the new version.

It’s not clear whether any compromise measure is possible. The colleges vigorously argue for keeping some form of exemption allowing them to follow their “tenets and mission.” The proponents seem unlikely to accept such language, and the Democrats, who hold the majority, generally tilt toward their position. But legislators have received many calls and messages concerning this issue, and critiques of the bill have already contributed to changes in it once before.

Thomas Berg is James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law (Minnesota), where he teaches constitutional law and supervises the school’s Religious Liberty Appellate Clinic. He has co-written articles and a Supreme Court brief (with Douglas Laycock) on how government can protect religious liberty as well as same-sex civil marriage.

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