Should There Be A Religious Exemption For Title IX?

The Washington Post generated some buzz this Wednesday when it reported that the Biden Administration’s Department of Justice will “vigorously” defend the Title IX exemption for religious colleges. The exemption allow religious colleges to engage in practices that would otherwise be considered discriminatory. According to the plaintiffs in a lawsuit filed earlier this year, some colleges are using this exemption to discriminate against LGBT+ students by failing to protect them from harassment, requiring them to go to anti-gay counseling sessions and punishing them for expressing their identity.

The plaintiffs are arguing that the exemption violates their rights under the First, Fifth, and Fourteenth Amendments of the U.S. Constitution. The lawsuit seeks to “put an end to the U.S. Department of Education’s complicity in the abuses and unsafe conditions thousands of LGBTQ+ students endure at hundreds of taxpayer-funded, religious colleges and universities.”

From one perspective, there is nothing to see here. Whatever the administration, the Justice Department usually defends the constitutionally of federal laws when there is a credible argument for doing so. The constitutional law regarding sexual orientation is very poorly developed, so it would be hard to claim the exemption is clearly unconstitutional.

Also, the Justice Department made its promise to vigorously defend the law in a legal document opposing a motion of various religious colleges to defend the exemption themselves. The government is promising that it will defend the law so that the court won’t allow the colleges to join the case and perhaps make more sweeping arguments that could harm LGBT+ students. The Justice Department must have quickly realized, though, that the promise to “vigorously” defend the law would set off alarm bells in some quarters and it filed an amended document with the “vigorously” language expunged.

Nonetheless, this case involves an extremely important and fast moving constitutional issue—to what degree should religious institutions and persons be exempt from requirements ranging from non-discrimination to vaccinations? The Supreme Court is about to rule in a case in which the City of Philadelphia is refusing to work with a catholic foster care agency unless it places foster children with same-sex couples.

After the oral argument in that case, SCOTUSblog’s generally astute Amy Howe wrote that it “seemed that the court might rule for the [religious foster case agency], but without necessarily issuing a sweeping pronouncement about religious rights and the First Amendment.” In an earlier case involving a religious baker in Colorado who didn’t want to bake a same-sex wedding cake, the Court also ruled on very narrow grounds. So the Court seems to want to move slowly and carefully here.

The case involving religious exemptions for Title IX will be a tough one for the Supreme Court if it gets involved. The Court is very adverse to discrimination against LGBT+ people as it demonstrated when it ruled that such discrimination by employers violates Title VII of the 1964 Civil Rights Act. But the Court is also concerned about discrimination against religious organizations. As I explained in a recent post, the Court recently raised the level of constitutional protection for religious organizations to a much higher level.

Given the high stakes and the uncertainty about where the Court is heading, the Biden Administration would be well-advised to take a compromise approach. While the religious exemption to Title IX is in the statute itself, the details of what the exemption covers are in found in the Code of Federal Regulations. That means that the Biden Administration can amend them on its own authority, not subject to Republican filibuster. So Biden could interpret the exemption more narrowly and explicitly state that even religious colleges must protect LGBT+ students from harassment and cannot require any form of conversion therapy.

These sort of reasonable, harm-preventing rules would be much less likely to get struck down by the Court in the name of protecting religious freedom. It would be a better approach than simply defending the exemption in its current sweeping form or removing it altogether. And it would allow Biden to govern as the bipartisan President he promised to be.