Ninth Circuit: Schools can be granted religious exemptions to Title IX under the Constitution

---

In a major win for religious liberty, a panel for the U.S. Court of Appeals for the Ninth Circuit affirmed that Christian colleges and universities don’t have to abide by non-discrimination laws that violate their deeply held beliefs in order to access federal financial aid for students.

---

The U.S. Court of Appeals for the Ninth Circuit ruled Friday that it is fully constitutional for Christian colleges and universities to have a religious exemption to non-discrimination laws.

A lawsuit brought by LGBT students against the U.S. Department of Education challenged the religious exemptions to Title IX enforcement allowed at three Christian schools: Corban University, William Jessup University, and Phoenix Seminary.

The case, known as Hunter v. U.S. Department of Education, was filed after the agency clarified in August 2020 that universities and colleges do not need to submit a written statement before invoking a religious exemption.

The students claimed that Title IX’s ban on discrimination on the basis of sex includes sexual orientation and gender identity and that granting religious colleges, which voluntarily take federal funding, an exemption to the ban violates the Constitution.

The plaintiffs argued that, as a result, it is unconstitutional for tuition grants, student loans, or any other federal financial assistance to be used at schools that operate according to their religious beliefs on gender and sexual morality.

Many courts have rejected that interpretation of Title IX. In Bostock v. Clayton County (in which the Supreme Court expanded the definition of sex to include sexual orientation and gender identity), it explicitly stated that the decision only applied to employment discrimination under Title VII, not Title IX.

Despite this clear guidance, some courts, the Ninth Circuit among them, have chosen to apply Bostock to Title IX.

However, although the Ninth Circuit took this same approach to Title IX in Hunter, it still ruled that religious exemptions to the non-discrimination rule are constitutional..

A three-judge panel compared the benefit of Title IX funding to having tax-exempt status, reasoning,

“Just as a school is not required to accept federal funding, a religious institution is not required to own property. Even so, religious institutions are constitutionally exempted from paying property taxes. Both the statutory exemption to Title IX and property tax exemptions operate as a financial benefit to non-secular entities that similarly situated secular entities do not receive.”

Moreover, they explained that even if Title IX’s exemption “is a ‘benefit’ instead of a ‘burden,’ [a] variety of benefits have been bestowed by government on religious practices and either have been unchallenged or passed constitutional muster without fatal compromise of principle.’”

They concluded,

“Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.”

The panel then noted numerous court rulings and legislative efforts that showed “uninterrupted practice” of law in our nation’s tradition, including a pattern of “modern legislative efforts to accommodate religious practice.”

The case, they explained, “evinces a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause. The examples provided by the Department demonstrate that religious exemptions have ‘withstood the critical scrutiny of time and political change,’” quoting Town of Greece v. Galloway.

The Ninth Circuit affirmed an earlier dismissal of the suit by a U.S. district court.

Chris Schandevel, senior counsel for Alliance Defending Freedom, which represented the three colleges, hailed the appellate decision, stating,

“Federal law explicitly protects the freedom of religious schools to live out their deeply held convictions, and we’re pleased this legal victory protects Christian colleges’ fundamental rights. A group of activists asked the court to strip that protection away from schools that educate the next generation and advance the common good. And the 9th Circuit correctly held that the religious-liberty exemption in Title IX, which applies to schools receiving federal financial assistance, is consistent with the Constitution.”

Without religious exemptions, religious schools and organizations would be forced to violate their religious beliefs in order to accept a public benefit that is freely available to schools and organizations whose beliefs align with the government’s.

The Supreme Court has consistently ruled that this is a violation of the First Amendment.

What these students were doing was trying to deny other students the right to attend a university which upholds their religious beliefs. Most colleges align with secular views on LGBTQ issues. LGBTQ students and those offended by traditional religious beliefs are free to attend those schools.

If only one homogenous view is allowed, what is the point of the First Amendment? This decision upholds the rights of all to receive public benefit and an education that aligns with one’s values — even those that are increasingly unpopular.

---

---

Interested in pursuing a fully accredited, biblically based education? Liberty University has been training students to serve as “Champions for Christ” in their respective professions across the industry spectrum for over 50 years. With over 350 residential academic concentrations, 20 NCAA Division 1 athletic programs, opportunities to serve domestically and abroad, and an unapologetic Christian worldview, your experience at Liberty University will provide an education that roots you in truth and allows you to learn, grow, and impact the culture for Christ. Apply now!