LGBT advocates target federal funding of Christian colleges
Religious Liberty | Class-action lawsuit seeks end to Title IX religious exemption
by Steve West
Posted 4/02/21, 12:46 pm
Avery Bonestroo, who identifies as bisexual and gender fluid, claims policies at Iowa’s Dordt University discriminate against homosexual and transgendered behavior. “I fear that I will be forbidden to graduate or forced to participate in conversion therapy if I do come out,” Bonestroo said.
The Dordt undergraduate is just one of 33 current or former Christian college students who brought a class action lawsuit against the U.S. Department of Education on Monday seeking to end an exemption for religious schools under federal nondiscrimination laws. The 67-page complaint alleges the exemption violates a variety of constitutional rights relating to bodily privacy, gender-affirming healthcare, and freedom from discrimination based on sexual orientation and gender identity. Students also contend giving the schools federal funding violates the First Amendment by supporting religion.
It’s not a coincidence that the suit comes as the U.S. Senate debates the Equality Act, a far-reaching bill that would write LGBT protections into federal civil rights law. The House has passed it, but it faces a tougher road in the Senate. Paul Southwick, director of the Religious Exemption Accountability Project, said his organization filed the lawsuit on behalf of students out of a concern they would be “be cut out of the Equality Act protection through negotiations.”
With the exception of the Mormon-affiliated Brigham Young University, the list of offending schools are all familiar Christian institutions, including such historic schools as Bob Jones University, Baylor University, Messiah University, and Liberty University. All permit gay and transgender students to enroll, but school policies generally bar sexual activity outside marriage between one man and one woman.
Late Wednesday, the Council for Christian Colleges & Universities—which represents over 150 schools in the United States and Canada—affirmed the organization’s support for the right of member institutions to teach and instill a “historic, Biblical understanding of marriage as part of broader religious convictions around human sexuality and gender.” The organization supports an alternative to the Equality Act, Fairness for All, which maintains a broad religious exemption.
Two students identified in the complaint, Nathan Brittsan and Joanna Maxon, are no strangers to litigation over their sexual orientation. In October 2020 a federal court dismissed their claim that Fuller Theological Seminary violated Title IX of the Civil Rights Act, which a Biden administration executive order interprets to bar discrimination based on sexual orientation and gender identity, by expelling them for entering same-sex marriages. The court ruled Title IX exempts schools controlled by religious organizations from following the law if it would contradict their faith.
But the case likely aims to make a statement more than anything. Some LGBT advocates are willing to compromise and accept a religious exemption in order to allow an amended Equality Act a better chance to pass the U.S. Senate. In response, the complaint targets an enclave of Biblical sexual mores.
David French, a lawyer and senior editor of The Dispatch, calls the attacks on Christian institutions troubling, particularly since the students did not have to attend a school they knew barred homosexual conduct. French says legal “precedent is resolutely against the plaintiffs, and it is overwhelmingly likely that their case will simply result in yet another decision strengthening the citadel of freedom.”
Constitutional scholar Douglas Laycock, a law professor at the University of Virginia, said he would be surprised if most judges or a majority of the Supreme Court would accept the argument that the religious exemption is unconstitutional. He argues the all-or-nothing approach many have taken on the religious liberty vs. gay rights debate has been counterproductive. LGBT students are free to attend secular colleges and universities or to attend religious colleges and universities and comply with their rules, he said: “What they seek, but are not entitled to, is to attend a religious college or university and change that college or university to fit their own secular preferences.”
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Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.