Ninth Circuit Stands Firm in Protecting Federal Funding for Religious Educational Institutions

​Can students who vehemently object to the religious beliefs of a religious college force that college to accept them and their beliefs? Would doing so be a blow for personal liberty, or a way to use the power of the law to force religious institutions to change their doctrine?
 
The Ninth Circuit considered these questions and came down hard on the side of religious liberty by affirming a lower court’s dismissal of just such a case.
 
At the center of that case is Title IX, the landmark civil rights law passed in 1972 that prohibits discrimination “on the basis of sex” at any educational institution that receives federal funding. A longstanding religious exemption, however, makes an exception for any school that is “controlled by a religious organization” and where “the application of [Title IX] would not be consistent with the religious tenets of such organization.”
 
In Hunter v. Department of Education, 33 LGBTQ+ students who applied to religious educational institutions, or attended such a school, brought suit against the government alleging that they experienced discrimination on the basis of their sexuality or gender identity. This may have seemed like a slam dunk. Some courts, the Ninth Circuit included, have interpreted Title IX’s prohibitions to also include discrimination based on such factors in addition to traditional understandings of biological sex.
 
The plaintiffs argued that Title IX’s religious exemption violates the First Amendment’s Establishment Clause as well as the Equal Protection Clause of the Fifth Amendment. In effect, they sought to prevent the future use of federal financial assistance (such as tuition grants and student loans) at religious schools that operate in accordance with their traditional beliefs on gender and sexuality.
 
In parsing the establishment claim, the court applied 2022’s Kennedy v. Bremerton precedent, which set forth a “historical practices” test in determining whether government action inappropriately assists religion in violation of the Establishment Clause. Writing for the court, Ninth Circuit Judge Milan D. Smith reinforced the basic tenets of religious liberty:
 
“First, the history of tax exemptions for religious organizations near the time of the Founding suggests that statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning. Second, case law evinces a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and this court have repeatedly accepted as consistent with the Establishment Clause.”
 
In analyzing the equal protection claim, the court found that that the exemption survives all manner of judicial scrutiny because:
 
“[It] substantially relates to the achievement of limiting government interference with the free exercise of religion. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution’s exercise of religion.”
 
There is no question that the LGBTQ+ community has faced – and continues to face – harmful and insidious discrimination on many fronts. But preventing students from accessing desperately needed financial resources to attend educational institutions whose teachings align with their sincerely held religious beliefs is not an appropriate means of redress. The First Amendment to the Constitution exists in large part to protect the free exercise of religion – even when a religious organization’s teachings may offend one’s sensibilities. To do otherwise would be to use the power of the government to forcibly change religious dogma, a recipe for unending social strife and culture war. The best solution for the plaintiffs is to attend the one of the vast majority of schools that hold no such religious dogma.
 
Protect The 1st served in an advisory capacity on this case, and we celebrate this win for religious freedom. At the same time, we recognize that we must remain ever vigilant in seeking to strike an appropriate balance between religious freedom and equality – both of which are of critical importance to a free and functioning republic.