A group of current and former LGBTQ+ students have sued the U.S. Department of Education to either force their colleges, universities, and seminaries to change their policies or to stop providing federal financial assistance. The complaint, Hunter v. U.S. Department of Education,  filed in federal court in Oregon, argues that by refusing to enforce nondiscrimination provisions against religious colleges, LGBTQ+ students face expulsion, denial of campus services, and face “institutionalized shame, fear, anxiety, and loneliness.” Although Title IX has an exemption for religious institutions, there are several reasons why the plaintiffs could prevail.

In 1983, the Supreme Court ruled that the IRS could permissibly eliminate Bob Jones University's tax-exempt status, which had a policy prohibiting interracial dating. The Court limited the decision to educational institutions, not churches, but stated that “Government has a fundamental, overriding interest in eradicating racial discrimination in education . . . which substantially outweighs whatever burden denial of tax benefits places on [the University’s] exercise of their religious beliefs.”

In 2020, the Supreme Court ruled 6-3 that the federal prohibition of discrimination based on sex included not only male and female but also LGBTQ+ categories. Justice Gorsuch wrote the Court’s opinion, stating, “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

While Title IX is arguably a piece of legislation from Congress, based on the 2020 decision, the Court is not likely to defer to Congress for clarification. The religious institution exemption may also be weakened by the Bob Jones University decision since same-sex marriage was recognized as a “fundamental right” by the Supreme Court in 2015 in Obergefell v. Hodges.

The case, which is presently at the trial level in Oregon, will likely have significant ramifications for religious colleges and universities nationwide that have become dependent on federal financial support. Among the institutions named in the lawsuit are: Bob Jones University, Baylor University, Nyack College, Union University (Jackson, Tennessee), Brigham Young University, Lipscomb University, Fuller Theological Seminary, York College, Cedarville University, Clarks Summit University, Oklahoma Baptist University, Toccoa Falls Colleges, Messiah University, Dordt University, Indiana Wesleyan University, Azusa Pacific University, La Sierra University, and Liberty University.

Government money rarely comes without strings attached.

We will continue follow this case as it proceeds.

 

 

 

 

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