In 2008, La Sierra University agreed to participate in a newly available tax-exempt municipal bond program. Like other bonds, it is funded by other organizations or individuals, and it is the tax-exemption portion that bears the great scrutiny.

Because it is tax-exempt, and costs the state of California insofar as potential tax revenues are diverted, the program carried with it certain restrictive covenants that could affect certain aspects of the life of the private religious university. These could include areas such as science instruction, whether students can be required to attend chapel, the types of clubs on campus, and the manner in which the university makes personnel decisions.

Before 2007, private religious universities in California were not permitted to participate in tax-exempt bond programs because it was seen to run afoul of a uniquely strong California state constitution provision enacted in 1879 that prohibited state and local governments from granting anything “in aid of any … sectarian purpose, or help[ing] to support or sustain any school, college, university, hospital or other institution controlled by any … sectarian denomination whatever …”

In 2007, the California Supreme Court ruled that religious institutions that met specific qualifications could participate in state-run programs without violating the state constitution. In the case, California Statewide Communities Development Authority (CSCDA) v. All Persons Interested in the Validity of a Purchase Agreement, the California Court found that three religious schools who sued to participate in a bond program could be trusted to keep their word that the money would not be used for religious purposes.

All three Southern California Christian schools, Oaks Christian School, California Baptist University, and Azusa Pacific University, had signed covenants that, “no portion of the proceeds of the bonds shall be used to finance and refinance any facility, place or building used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or in connection with any part of the programs of any school or department of divinity for the duration of the useful life of the project financed with the proceeds of the Bonds.”

In other words, the schools had promised that they would never use facilities financed with the bonds to further the explicitly religious aspects of their campus.

The trial court had ruled against the schools on the basis that compliance with the covenant against religious use would be impossible to uphold because each school was “organized primarily or exclusively for religious purposes” and “discriminates on the basis of religion in hiring faculty.” The lower court had further stated that it would be absolutely impossible for the schools to comply because “religion is both mandatory and integral to every aspect of student life. Religion is integrated into classroom instruction.”

The 4^th District Court of Appeals reviewed the case and decided that deeper inquiry was needed since the schools had been identified as “pervasively sectarian.” The District court said that the covenant itself was not enough to insure compliance with the sectarian aspects and that it would be impossible to separate the religious from the secular aspects of these campuses. The District court added, “[e]ven assuming it was possible to monitor the program restriction under the contract provision allowing CSCDA a right of access to inspect the facilities…, such monitoring would necessarily require entanglement of government and religion that would raise its own constitutional alarms…. Moreover the fact that certain classrooms would not themselves be devoted to religious study is immaterial when the school program, as a whole, pervasively focuses on religious instructions.”

Finally, the California Supreme Court upheld the covenant against religious use and said that the schools could decide whether to comply with these provisions. It did propose a two-part test to see whether the financing would meet the secular requirements of the California constitution. First, “does each of the recipient schools offer a broad curriculum in secular subjects?” Secondly, “do the schools’ secular classes consist of information and coursework that is neutral with respect to religion?”

The high court said this two-part test, “ensures that the state’s interest in promoting the intellectual improvement of its residents is advanced through the teaching of secular information and coursework, and that the expression of a religious viewpoint in otherwise secular classes will provide a benefit of religion that is merely incidental to the bond programs’ primary purpose of promoting secular education.” (Emphasis added.)

The high court said that religion could be taught in the same manner it is taught in public schools. “Of course, religion may be an object of study in classes such as history, social studies, and literature, just as in public schools, in a manner that neither promotes nor opposes any particular religion or religion in general.” However, the court specifically prohibited sectarian education in funded facilities. “[A] class that includes as part of the instruction information or coursework that promotes or opposes a particular religion or religious belief may not be taught in facilities financed through tax exempt bond financing.”

The court was willing to presume that the institutions would abide by covenants against religious use subject to investigation by governmental authorities to ensure compliance.

Three dissenting justices expressed concern that even if the schools followed the covenants, they still routinely made hiring decisions that discriminated along the lines of religion or sexual orientation and would violate neutrality requirements. Justice Ming W. Chin, writing the dissent stated that “the proposed bond financings would have the direct, immediate, and substantial effect of advancing religion and would contravene the constitutional provision’s purpose, by devoting the government’s power and authority to raise money at below-market interest rates through the issuance and sale of tax-exempt bonds to the support and advancement of religious or sectarian purposes.”

Justice Chin then described ways that the institutions would be in violation of the restrictive use covenant. Noting the uncontested findings that religion was both mandatory and integral to every aspect of student life at the schools, “and that the schools are ‘organized primarily or exclusively for religious purposes,’ ‘restrict[ing] admission of students by religious criterion,’ ‘discriminat[ing] on the basis of religion in hiring faculty,’ and ‘integrat[ing]’ ‘[r]eligion into classroom instruction,’ notwithstanding the restricted use covenants, the proposed bond financings would impermissibly provide aid for religious projects.”

Following the CSCDA decision allowing for bonds to be issues to the three Southern California Christian schools, in May 2008, the Board of Trustees of La Sierra University, in a manner that the university states was moved through all of the appropriate channels of the Seventh-day Adventist Church and university leadership, voted to issue a $24,405,000 tax-free bond (See “LSU Bond” document). The bond was used to complete several campus improvement projects and to refinance the debt and reduce payments on the recently constructed Price Science Complex. (See "La Sierra University Responds to Speculative Postings on Independent Websites.")

La Sierra University signed the same restrictive covenants as in the CSCDA case, and in particular the university “has covenanted that no portion of the proceeds of the Bonds shall be used to finance and refinance any facility, place or building used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or in connection with any part of the programs of any school or department of divinity for the duration of the useful life of the project financed with the proceeds of the Bonds.” (LSU Bond at page 27).

As a result, La Sierra is presumably subject to monitoring by the state authority governing the bonds to ensure compliance with the non-religious use covenant.

There are several unresolved questions regarding what the bond means for the university. In January 2013, Spectrum’s blog published an article by T. Joe Willey, Ph.D., noting that “according to the prohibited use covenants in the bond the science building is therefore off limits for religious purposes.” Religion could be only taught to the extent that it is taught in public universities according to the language of the California Supreme Court ruling.

Indeed it could apply around campus—any place where the bond funding was used to enhance a facility could potentially be deemed religion-free zones.

When it comes to the issue of hiring, as indicated by the dissenting justices in CSCDA, La Sierra may no longer be able to legally discriminate on grounds of religion or sexual orientation. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the U. S. Supreme Court found that a relatively broad category of employees could be considered “ministers,” but La Sierra may have contracted around these prohibitions, at least on bond-funded parts of campus. Ultimately, La Sierra may find that it no longer has the ability to terminate or impose professional discipline on faculty and staff for reasons related to their religious practice or belief, or lack thereof.

Finally, when it comes to allowing student clubs on campus, La Sierra may be prohibited under the contract that it voluntarily signed that it can no longer legally prohibit recognition for a gay and lesbian club. This issue made news in November 2012 when a gay and lesbian club was denied recognition because, in the words of the campus spokesperson, the club “does not align with Seventh-day Adventist beliefs on sexuality. La Sierra is a Seventh-day Adventist university, so we support the values of the SDA Church. That is why they were turned down.”

It does not appear that the bond has been used by any parties to expand their rights on campus, but the bond would seem to give many groups a right of legal action in the event that they feel discriminated against by the university because of their religious beliefs. From a religious liberty angle, religious institutions have long held the “right to discriminate” in order to protect their interests and religious missions, but what the California Supreme Court seems to be saying is that they also have the right to contract away some of these protections in return for tax-exempt bond funding.

All that we can be sure of now is that the restrictive covenant against religious use is applicable for the duration of the useful life of the facilities financed with the bond.

—Michael Peabody, an alumnus of La Sierra University, is an attorney in Los Angeles and the editor of Religiousliberty.tv.

Read La Sierra University's response here. As part of this simultaneously published point/counterpoint series, and in an effort to facilitate fairness and understanding in this conversation, all comments will be centralized on a third blog post, available here.

As part of a simultaneously published point/counterpoint series, and in an effort to facilitate fairness and understanding in conversation, all comments reading these two articles, Point: Bonds, Liberty, and Adventist Education / Counterpoint: Bonds, Liberty, and Adventist Education will be centralized on this post. Be sure to read both articles before commenting. Citation of actual language from either point-of-view is encouraged.

In Part I of this series, I proposed the Christian ethic of gun ownership that I want to outline. This ethic juxtaposes the historical Adventist ethic of conscientious objection with the ethics of Dietrich Bonhoeffer. In this section, I will argue for the usefulness of this approach.

A Short History of Non-Violence [i]

Like us, early Adventists, from the Civil War to WWI, lived in an era of violence. In this context Adventists formulated and acted out an ethic of conscientious objection to bearing arms.

During the American Civil War, Adventists refused to bear arms. For example, in an 1864 letter to the governor of Michigan, the first General Conference president, John Byington, requested that Adventists be exempted from military service. Byington wrote that “Seventh-day Adventists, taking the Bible as their rule of faith and practice, are unanimousin their views that its teachings are contrary to the spirit and practice of war; hence, they have ever been conscientiously opposed to bearing arms.”[ii] Similarly, in an article published in The Advent Review and Sabbath Herald in September 1864, J.N. Andrews wrote that Adventists are “a noncombatant people.”[iii] On the same note, Ellen White, writing of the Civil War, said: “I was shown that God's people, who are His peculiar treasure, cannot engage in this perplexing war, for it is opposed to every principle of their faith…There would be a continual violation of conscience [for Adventists who participate].”[iv]

Likewise, during the Spanish-American war, Adventists spoke against the imperialist violence of American military operations. A. T. Jones wrote, “War is the loss of all human sense; under its influence men become animals entirely.”[v] “ Jones drew a total divide between Christians and warriors: “Christianity is one thing; war is another, and far different thing.”[vi] Adventist resistance to American violence can also be seen in Percy Magan’s The Peril of the Republic, a work published in 1899, condemned the Spanish-American War as “national apostasy.”[vii] The official position of the Adventist church remained one of total opposition to violence, especially the violence of imperialist war.

From the early 1860s until Ellen White’s death on the eve of World War I, the Adventist church maintained an unambiguous position of conscientious objection, which mandated total abstinence of church members from participating in armed combat.

An Even Shorter History of Conscientious Objection

After Ellen White’s death, according to Ronald Osborn, “the ethos of the early [Adventist] church rapidly eroded…with regard to the military and bearing of arms.”[viii] Though Adventists continued to publish statements which outlined a position of conscientious objection, the church position grew continually more ambivalent on the participation of church members in military service. For example, a 1934 statement approved by the General Conference stated that Adventist youth “should be patriotic, ready to serve their country’s welfare at personal sacrifice.”[ix] As Osborn points out, “maintaining good relations with government authorities now took precedence over prophetic and politically dangerous brands of dissent.”[x]

By 1972, when a statement of the Autumn Council “made clear that those who accepted 1-O or 1-A (combatant) classification would not be denounced or excluded,”[xi] the Adventist position had changed so fully that “the noncombatant principle the church had repeatedly advocated…had officially been rendered non-normative.”[xii] Currently, many Adventists serve as full combatants in militaries around the world.

Adventist practice has moved quite drastically away from the early pacifist radicalism. Currently, Adventists take a variety of positions on a matter which they once all agreed on. The historical Adventist ethic of conscientious objection, once seemingly clear-cut, has become confused and contradictory. What should we make of this history?

Bonhoeffer's Bright Steel

Let us turn to the ethics of Dietrich Bonhoeffer. Bonhoeffer outlined his ethics in the context of Nazi Germany. In this context, in some ways similar to our own, Bonhoeffer felt “the pressure of reality filled with concrete, ethical problems such as we have never had before in the history of the West.”[xiii]

In response to the ethical problems of his age, Bonhoeffer rejected the paradigms of traditional ethics. “Reason, ethical fanaticism, conscience, duty, free responsibility, and quiet virtue are goods and convictions of a noble humanity,”[xiv] wrote Bonhoeffer, acknowledging the goods of traditional ethical paradigms. Yet Bonhoeffer found these paradigms inadequate for the overwhelming ethical problems of the day: “nevertheless we must replace rusty weapons with bright steel.”[xv]

For Bonhoeffer, this bright steel is the knowledge that “reality is not built on principles, but rests on the living, creating God…[the knowledge] that reality can be helped neither by the purest principles nor with the best will, but only by the living God.”[xvi] Reality is “real only in God.”[xvii] This understanding is possible “only because there is one place where God and the reality of the world are reconciled with each other…Jesus Christ the reconciler of the world.”[xviii]

The person who wields this bright steel is “liberated from the problems and conflicts of ethical decision, and is no longer beset by them. This person belongs to God and to God’s will alone.”[xix] This person is called to live responsibly in response to the Word of God in Christ.[xx] How?

For Bonhoeffer, “the attention of responsible people is directed to concrete neighbors in concrete reality. Their behavior is not fixed in advance once and for all by a principle, but develops together with the given situation.”[xxi] Acting with free responsibility may entail taking on guilt, which the person acting freely takes upon herself.  “Those who in acting responsibly take on guilt…place this guilt on themselves, not someone else; they stand up for it and take responsibility for it…Those who act out of free responsibility are justified before others by dire necessity; before themselves they are acquitted by their conscience, but before God they hope only for grace.”[xxii]

Divine Command Ethics

Before putting Bonhoeffer’s ethics into full dialogue with the Adventist ethic of conscientious objection, I want to quickly mention “divine-command ethics.”

This ethics, embraced by elements of the Adventist tradition and the Radical Reformation tradition from which it stems, proposes that Christians can draw unambiguous ethical imperatives from the Bible. Many early Adventists assumed divine-command ethics, and contemporary Adventists continue to assume one. In Seventh-day Adventists Believe, ethics are framed as a matter of “principles.” For example, in the words of belief nineteen, “the great principles of God’s law are embodied in the Ten Commandments and exemplified in the life of Christ.”[xxiii]

Divine-command ethics stems from the idea that God’s commands are ‘eternal,’ in the sense of a-temporal. Since God’s commands are a-temporal, they are written down (especially in the Bible) and can constantly be referenced in the face of ethical problems. This ethics ignores the historicity of the biblical record of God’s words for His people. For example, it ignores the preamble to the Ten Commandments, which frames the ethics of the Commandments as historically unique to Israel: “I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery.”[xxiv]

Divine-command ethics as an ethics of principles is one of the ethics that Bonhoeffer objected to. But divine-command ethics has been proven inadequate in Adventist history, particularly, as outlined above in the Adventist approach to military service.

Bonhoeffer’s Ethics and the Adventist Ethic in Dialogue

Bonhoeffer’s ethics render the current Adventist ethic of conscientious objection (based on divine command ethics) unintelligible. Moreover, the contradictory answers that contemporary Adventists give to the once clear-cut question of military service points to the need for Adventists to consider a new ethical framework.

An ethics for today can be formulated based on the ethics of Bonhoeffer. This ethics would be an ethics which acknowledges the concrete realities of historical circumstances. While retaining (and indeed amplifying) the centrality of Christ which figures prominently in Adventist thought already, this ethics would also allow us to deal with the ethical challenges of today—including the challenge of gun ownership.

Elements of Adventist ethical tradition have already begun to reformulate ethics in the terms similar to Bonhoeffer’s ethics. For example, the General Conference statement of ethical foundations for its proceedings and employees (the pastors and leaders of Adventist churches) states: “We are responsible first to God, our Creator…We are responsible to the communities in which we work and live and also to the world community.”[xxv] In this ethical statement, responsibility based on acknowledgement of historical situations figures much more strongly than the ethical imperatives characteristic of divine-command ethics.

In Part III, I will apply Bonhoeffer’s ethics of the responsible life based on a knowledge of historical reality—urgently called for by ethical impasses like the contradictory ethic of Adventists in the military—to the question of gun ownership.