By DEACON MIKE MANNO
I think we’ve probably known all along that in the current state of things our religious liberty would be under attack. I’ve written about those things and my radio program has highlighted many more. Until recently, however, the attacks have been somewhat muted, limited to isolated instances, and, at least to the general public, not very brazen.
But with a new political magisterium of faux Christianity, faux patriotism, faux liberty, along with the growing acceptance of a cancel culture, the New Left has ratcheted up the ante and no longer tries to conceal its vulgar attacks on Catholicism, people of faith, and conservative Christians.
So while the Equality Act, endorsed by the president and the majority party leaders of Congress, is pending before the Senate, an act which would stifle churches’ ability to teach and live out their beliefs, especially in the area of sexual morality, a legal challenge has raised the possibility that religious colleges might be cut off from federal funding upon which they have been dependent.
Acolytes of the New Left, operating under the name of the Religious Exemption Accountability Project (REAP), have filed suit in an Oregon federal court on behalf of current and former students to prevent future students from using tuition grants, student loans, and any other federal financial assistance at schools that operate according to Christian beliefs on sexuality.
The crux of the argument is that the religious exemption afforded to religious institutions under Title IX are unconstitutional because it allows for discrimination on the basis of, among other things, sexual and gender identity.
According to the Department of Education website, “Title IX generally prohibits a recipient institution from excluding, separating, denying benefits to, or otherwise treating students differently on the basis of sex in its educational programs or activities.” But it does not apply “to an educational institution that is controlled by a religious organization to the extent that application of Title IX would be inconsistent with the religious tenets of the organization.”
That, according to REAP, is unconstitutional, and on its website argues, “REAP’s lawsuit asserts the constitutional and basic human rights of LGBTQ+ students, seeking to end the sexual, physical, and psychological abuses perpetrated under the religious exemption to Title IX at thousands of federally funded schools, colleges, and universities across America.”
The class action suit was filed on behalf of 33 current and former students of some 25 Christian colleges that receive federal funds from the Department of Education. The 33 named plaintiffs are claiming to represent more than 100,000 sexual and gender minorities attending religious institutions where, REAP suggests, they were discriminated against on the basis of sexual orientation and gender identity.
The 67-page suit lists each student, the college he or she (using the person’s proper pronoun) attended, and briefly how they were discriminated against. Some seemed quite trivial, such as the complaint by Rachel Held, a bisexual women attending Messiah University, “Messiah believes that the Bible teaches that marriage is between one man and one woman.” Rachel is engaged to another woman. Messiah University is a private Christian school in Mechanicsburg, Pa., whose motto is “Christ Preeminent.”
Lauren Hoekstra is a self-identified “queer woman” who attended Dordt University in Sioux City, Iowa. Apparently what Lauren found so intolerable were “activities that the school has declared unbiblical include ‘promoting or advocating sexually immoral activity,’ ‘extramarital sexual relations,’ ‘homosexual relations,’ and ‘transgendered behavior’.” Dordt is a private Christian institution affiliated with the Christian Reformed Church.
I could go on, but I think you get the drift. Anyway, the catchall takeaway is summed up in the fourth paragraph of the lawsuit: “When taxpayer-funded religious institutions require sexual and gender minority students to hide their identity out of fear, or to behave contrary to their fundamental sexual or gender identity, the unsurprising consequences are intense pain, loneliness, and self-harm. Students perceive that their campus, and even their government, believes that they are inferior in dignity and worth.”
None of the colleges are named as defendants in the lawsuit. In fact, the only defendants named are the Department of Education and several department officials in their official capacities. Thus, if that is left to stand, the Biden administration would very likely “settle” the suit favorably to the plaintiffs.
However, the Alliance Defending Freedom (ADF), representing four Christian colleges, has petitioned to intervene in the case to argue for the defense. Intervention in a lawsuit would allow a party not originally named in the suit to enter as an actual party. The theory being that the intervenor may have rights that would be affected by the court’s decision. Intervention can be granted by right, when the party can show that he cannot be adequately be represented by either of the existing parties, or it can be permissive when in the court’s opinion the claims by the intervenor has common elements of law or fact with the suit.
ADF has petitioned under both theories, but it is difficult to imagine a federal judge denying the request. In its 27-page motion and brief, ADF says, “The very existence of Title IX’s Religious Exemption is at stake here, yet none of the current parties are religious educational institutions that benefit from this exemption. This case asks whether the Department may continue to grant and recognize religious exemptions enshrined in Title IX and required by the Constitution and the Religious Freedom Restoration Act. Religious Schools are Christian universities and seminaries that qualify for the Religious Exemption….The court should not assess the Religious Exemption’s constitutionality without hearing from the very institutions the exemption was designed to protect.”
Of course sometimes what happens in court can be a crap-shoot, especially when the litigants forum shop. Paul Southwick, the president and lead counsel for REAP, was asked why file in Oregon rather than in D.C. His reply was that it was close to him and “the Ninth Circuit [Court of Appeals, in whose jurisdiction is Oregon] tends to take a view of the Constitution and civil rights that aligns with our lawsuit.”
David Cortman, ADF vice president of U.S. litigation, suggested:
“This lawsuit wants the federal government to tell Christian schools, ‘To continue accepting students who have federal financial aid, all you have to do is to start acting contrary to your own beliefs.’ That’s neither reasonable nor constitutional. No court should grant a radical request to rewrite federal law and strong-arm religious colleges by stripping their students of much-needed financial aid. For that reason, we are asking the court to let our clients intervene in this lawsuit so that they and their students can defend their freedoms under federal law and the Constitution.”
“The very existence of Title IX’s Religious Exemption is at stake here, yet none of the current parties are religious educational institutions that benefit from this exemption,” said ADF Senior Counsel Ryan Tucker. He noted that those who filed the lawsuit are asking the court “to declare the Religious Exemption unconstitutional and seek a permanent injunction rescinding and prohibiting religious exemptions for institutions that hold beliefs about marriage, sexuality, and gender disfavored by some. The court should not assess the Religious Exemption’s constitutionality without hearing from the very institutions the exemption was designed to protect.”
It would seem likely that ADF’s motion will be granted, the battle will be joined, and the topic of the religious exemptions will come front and center with the Biden administration, after the litigation ends, having the option to either withdraw the exemption, as the Obama-Biden administration tried, or to restore it with restrictions.
Time will tell. But I can assure you, more of these religious attacks are coming and the strong defense which Mr. Trump would have provided won’t be there for us. The long knives will be coming.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CT on Faith On Trial at IowaCatholicRadio.com.)
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