The Ninth Circuit opinion in Hunter v. U.S. Dep’t of Ed., authored by Judge Milan Smith and joined by Judges Mark Bennett and Anthony Johnstone, addresses the issue of discrimination against LGBTQ+ students in religious educational institutions. The plaintiffs in the case alleged that they were discriminated against based on their sexuality or gender identity and challenged Title IX’s religious exemption.
The court affirmed that Congress did not exceed its constitutional boundaries in balancing religious freedom and gender-based equality. Title IX prohibits discrimination based on sex in federally funded educational institutions, but allows exemptions for religious organizations that would conflict with their religious beliefs.
The court further held that the exemption does not violate the Establishment Clause, citing historical analogues such as tax exemptions for religious institutions. The court found that the exemption provides a financial benefit to non-secular entities without violating constitutional principles.
Plaintiffs argued that the exemption favored religion over irreligion and discriminated between religious sects, but the court disagreed, citing previous Supreme Court rulings and the broad application of the exemption to any religious organization whose tenets conflict with Title IX.
Overall, the court found that the Title IX religious exemption is consistent with historical practices and traditions of accommodating religious beliefs, and does not violate the Establishment Clause.
In this case, when a school claims an exemption, the Department must determine if the school is controlled by a religious organization and if Title IX would conflict with the religious beliefs of the controlling organization. The Department has never rejected a school’s claim of being controlled by a religious organization or denied a religious exemption based on religious objections.
The court found that the exemption does not violate the Establishment Clause or equal protection principles. The exemption accommodates the free exercise of religion by religious educational institutions, which is considered fundamentally important. The exemption is narrowly tailored to only apply to institutions controlled by religious organizations and only when there is a conflict with the religious tenets of the organization.
Plaintiffs’ claims under the Administrative Procedure Act related to the Department’s rules implementing the exemption were also rejected by the court. For more details, the full opinion should be read.
Ashley C. Honold represented the Justice Department, Christopher P. Schandevel represented intervenor educational institutions, and Gene C. Schaerr represented intervenor Council for Christian Colleges & Universities. The briefs were also joined by other lawyers from the Schaerr Jaffe firm.
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