dissenting.
I cannot agree with the opinion of my colleagues, although I am sympathetic with the desire of the trustees to withhold the seminary’s degree from an avowed homosexual. For me, the problem of the seminary falls primarily on the actions, or inac-tions, of the dean, the president, and the faculty. If those seminary leaders cannot stand up for what is supposed to be right, then why should we expect the student, Vance, to interpret the meaning of the language in the catalog to exclude him from eligibility for a degree. Since neither the dean, the president, nor the faculty understood the catalog to clearly exclude homosexuals, their view certainly clouds any contrary meaning.
The trial court found the language in the catalog to be too ambiguous to exclude a homosexual such as Vance. Under the circumstances in this case, I agree. Except for the indecisiveness of the dean and the president, however, I would have agreed with the majority opinion and concluded that anyone intending to become a minister in any Christian denomination should understand, or at least soon know, the attitudes toward homosexuality as are expressed in both the Old and New Testaments of the Bible.
Once the dean and the president were aware of Vance’s intention to continue living as a homosexual, they could have reasonably expelled him. Such a decision would obviously have been upheld by all members of this panel, if Vance had bothered to challenge such a dismissal.
Vance voluntarily gave the dean and president this information in September, a whole school year before his time for graduation. At the beginning of his final semester, the seminary accepted more tuition, and Vance was advised what he must do to complete the requirements for the degree. Vance did all of these things and was then recommended for a Masters Degree by the faculty. Therefore, in addition to agreeing with the trial judge’s finding that the catalog did not exclude homosexuals, I must also conclude that the seminary should be estopped from denying Vance his degree. The fact that Vance was given some weak warning would not overcome this.
I can certainly understand why the Board of Trustees would not wish to grant Vance a degree from the Lexington Theological Seminary, Inc., but granting the degree does not ordain Vance to become a minister in any church. Furthermore, degrees have been granted by this seminary to others who did not intend to become Christian ministers. For that matter, degrees have been granted to non-christians, who merely desired to become educated in the teachings of the seminary. In the future, the Board should consider revising the catalog to be more explicit on what is meant by “fundamental character.” The Board might also make it clear that applications for degree candidacy will not only be “evaluated by the faculty” but will also be reviewed by the Board.
*16The seminary raised a question regarding religious freedom and the separation of church and state. Under the peculiar circumstances in this case, and considering the nature of this particular seminary, I do not find that the trial court’s judgment violates the constitutional requirements of religious freedom and the separation of church and state. The seminary also argued that Vance’s original enrollment was based on fraud or mistake which would render any contract void. This point would be valid only if the catalog “contract” could be interpreted to exclude homosexuals. Since I have concluded that the language has been rendered meaningless, Vance’s failure to disclose his life style and feelings on this moral issue could not constitute fraud on his part. This argument might have carried considerable weight, and the changed circumstances would probably have brought a different result, if Vance had not disclosed his homosexuality until he had completed all academic requirements for his degree.
Finally, I agree with the trial judge in that Vance proved no damages. Therefore, I would affirm the judgment of the trial court on the appeal and the cross-appeal.