When five unelected super-legislators on the Supreme Court unilaterally amended the Constitution to legalize same-sex marriage in 2015, Chief Justice John Roberts warned that the ruling would pose “hard questions” about the freedom of religious colleges to operate according to their convictions. Former Solicitor General Donald Verrilli said, “It will be an issue.” This week, Roberts’ warning has come to pass, and the time in which Verrilli’s “issue” comes to the fore is now.
On Monday, 33 current and former students at federally-funded Christian colleges and universities launched a historic attack on religious freedom by filing a class-action lawsuit against the Department of Education (DoE). The lawsuit, Hunter et al. v. Department of Education, claims that the DoE violated the First, Fifth, and Fourteenth Amendments to the Constitution by granting religious exemptions to Christian institutions that allegedly “discriminate” against “sexual and gender minorities.”
“The religious exemption to Title IX impermissibly burdens the fundamental marriage rights of same-sex couples seeking to attend taxpayer funded religious educational institutions that prohibit their marriages,” the lawsuit, filed by the Religious Exemption Accountability Project, alleges. “When sincerely held religious beliefs become enacted as school policies that harm LGBTQ+ students at taxpayer-funded colleges and universities, the necessary consequence is that the U.S. Department of Education has put its imprimatur on an exclusion that demeans and stigmatizes sexual and gender minorities.”
“The federal government cannot claim a legitimate governmental interest in furthering discrimination that harms sexual and gender minority students,” the lawsuit adds.
The lawsuit squarely takes aim at a central point of biblical Christian conviction: the idea that Christians are to “love the sinner but hate the sin.” Christians, who are redeemed sinners themselves, should offer the grace they received in Jesus Christ to sinners, while encouraging themselves and others to stop sinning. This vital distinction allows Christians to love others without condoning their actions.
Christian colleges and universities often use this distinction to explain that they are open to students with LGBT identities even though they ask their students to sign a code of conduct barring homosexual activity (and heterosexual activity outside of traditional marriage).
The lawsuit takes direct aim at this distinction. “The law does not recognize an identity/conduct distinction. The law does not recognize ‘love the sinner, hate the sin.’ Policies and laws targeting ‘homosexual conduct’ or ‘transgender conduct’ in fact target LGBTQ+ identity,” the lawsuit claims.
By allowing such policies, the Department of Education violates the due process and equal protection rights enshrined in the Fifth and Fourteenth Amendments, the suit alleges. The current and former students also claim that religious exemptions violate the Establishment Clause. “Religious educational institutions that do not affirm LGBTQ+ identities receive a license to discriminate from the Department of Education,” they argue.
According to the lawsuit, the Department of Education and other federal agencies provide billions of dollars annually ($4.2 billion in 2018) to “religious colleges and universities that discriminate against LGBTQ+ students.” That funding includes student financial aid, research grants, and other forms of funding. The lawsuit seeks a permanent injunction that would cut off all of that funding.
The suit, filed in the U.S. District Court for Oregon, asks the court to prevent the DoE from granting further religious exemptions to Title IX regarding LGBT issues, to rescind all such religious exemptions that currently apply, to mandate that the DoE treat LGBT-themed Title IX complaints at religious colleges the same as it does elsewhere, and requiring the DoE to prevent the “discrimination” at issue.
The students claim they “seek safety and justice for themselves and for the countless sexual and gender minority students whose oppression, fueled by government funding, and unrestrained by government intervention, persists with injurious consequences to mind, body and soul.” They claim the DoE’s “inaction leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.”
While the lawsuit takes aim at federal funding for colleges and universities like Azusa Pacific University, Baylor University, Bob Jones University, Brigham-Young University, Liberty University, and Fuller Theological Seminary, a ruling in favor of the plaintiffs would likely ultimately impact the conservative Christian colleges and universities that do not receive federal funding, such as Hillsdale College, Grove City College, Southern Baptist Theological Seminary (SBTS), Boyce College, and others.
Taxpayer funding makes some institutions more vulnerable, but if she Senate passes the Equality Act and if President Joe Biden enforces his view of LGBT “rights,” then even refusal to take federal funding will not protect biblical Christian institutions from penalties for “discrimination.”
Of course, the issue also extends beyond colleges and universities. As SBTS President Al Mohler explained on Wednesday, the lawsuit targets “not just Christian institutions, organizations, and ministries, but the churches and denominations behind them.”
“If your church or your denomination cannot establish an institution serving your purpose on your own convictional basis, then you are being denied the right to operate as a church,” he argued.
The lawsuit notes that “most of the institutions seeking exemptions are Evangelical Christian institutions,” even though a few of the colleges and universities are Mormon or Seventh-Day Adventist.
Make no mistake — this lawsuit is a direct assault on the religious freedom of conservative Christians who dare to dissent from LGBT orthodoxy and attempt to live out their convictions.
Under Joe Biden, it seems tragically likely the Department of Education will cave to the demands of this lawsuit. Biden, a long-term supporter of conscience protections like the Hyde Amendment (which prohibits taxpayer funding from going directly to abortion), turned against the Hyde Amendment in the 2020 election — and he also pledged to gut religious freedom protections for a group of nuns who objected to paying for abortifacient contraceptives.
A few days into his presidency, Biden signed an executive order banning “discrimination” on the basis of sexual orientation and gender identity in various parts of American society, including schools.
This lawsuit is attempting to force Biden’s administration to extend the policy the president already supports and to gut the kind of religious freedom protections Biden already opposes. These students and the “Religious Exemption Accountability Project” may not even need a court injunction to achieve their ultimate aim.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.