Biden vs. Religious Freedom on Campus

Christian colleges may soon find themselves dead by a thousand cuts.

Despite a couple of recent, high-profile legal victories for religious freedom, the Biden administration is not abandoning its attacks on faith-based organizations—including religious colleges and universities, as well as religious groups on public campuses. Quite the contrary. The administration, undeterred, continues its long-term strategy of whittling away at religious liberties rather than confronting them head-on.

Before we explore that strategy, let’s first take a moment to celebrate the wins. For those of us engaged in this battle, who often feel like we’re fighting a rearguard action against an overwhelming foe, it’s important to recognize that we are not, in fact, always losing. The courts, at least, appear to be on our side—for now.

Our most notable recent victory, perhaps, is the dismissal, in January, of a lawsuit against the Department of Education claiming religious exemptions to Title IX are “unconstitutional.” The suit, filed in Oregon by the Religious Exemption Accountability Project, on behalf of more than 40 plaintiffs, accused several Christian colleges of “discriminating” against “LGBTQ+” individuals.

One might think the Biden administration would give up trying to foist its agenda on religious organizations.In her decision, U.S. District Judge Ann Aiken upheld the exemption because, she said, it is “substantially related to the government’s objective of accommodating religious exercise.” She also rejected the plaintiff’s arguments that the policy runs afoul of the equal protection and establishment clauses in the U.S. Constitution.

Another case involved Brigham Young University, which was being investigated for Title IX violations after several “LGBTQ+” students there complained of discrimination. The DOE dropped its investigation last year, reaffirming BYU’s longstanding religious exemption from “various Title IX provisions to the extent that application of these provisions is not consistent with the religious tenets of the Church of Jesus Christ [of Latter-day Saints] ‘that pertain to sexual orientation and gender identity.’”

Faced with such unfriendly decisions, one might think the Biden administration would give up trying to foist its sexuality-and-gender-based “equity” agenda on religious organizations. Not so. It is playing the long game, working methodically to achieve its aims through legislative and executive action.

Case in point: the recently-passed Respect for Marriage Act (RMA), which codified same-sex marriage into federal law, establishing for it the same protections long afforded to traditional marriage. Proponents of the law insist it will not affect religious institutions because it applies only to “state actors.” However, the Supreme Court has ruled that “a private entity can qualify as a state actor in a few limited circumstances,” such as “when the private entity performs a traditional, exclusive public function.”

Could a college that disburses Pell Grants, essentially functioning as an agent of the federal government in that “limited circumstance,” be considered a “state actor”? I suspect we are going to find out; indeed, I believe that is one of the law’s objectives—“to make it easier to sue religious organizations,” in the words of the Heritage Foundation’s Roger Severino.

Utah Republican Senator Mike Lee, in his opposition to the RMA, put the matter even more bluntly:

Some same-sex marriage extremists are now trying to use the power of the state to punish those that have traditional religious beliefs about marriage. Americans who believe in a traditional definition of marriage are now in danger of having their business licenses revoked; colleges with similar beliefs could lose their accreditation; military chaplains could be court-martialed; and faith-based hospitals could lose federal funding.

If you think that sentence contains too many “coulds,” consider: The Senate, along strict party lines, rejected Lee’s proposed amendment, which would have prohibited “the federal government from retaliating against any person or group for adhering to sincerely held religious beliefs and moral convictions about marriage.” Clearly, Democrats did not want to include stronger, more explicit protections for religious liberty, perhaps because, as Severino argues, opening the door to such retaliation is precisely the point.

The problem for religious institutions is that redefining sex to include “gender identity” creates additional regulatory hurdles.A second component of the administration’s anti-religious-freedom strategy involves its long-anticipated revisions to Title IX. The original law, passed in 1972, stated simply, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The proposed changes expand “on the basis of sex” to include “discrimination on the basis of sexual orientation and gender identity.” (I say “proposed,” but the new rules are scheduled to go into effect any day now and indeed may already be in effect by the time this essay is published.)

Administration officials might argue that the new Title IX regulations leave in place the “religious exemption” clause, known as Article 1681, which states, “This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” However, the problem for religious institutions is that redefining sex to include “gender identity” creates additional legal and regulatory hurdles.

As Tyson Langhofer, senior counsel for the Alliance Defending Freedom, wrote in a letter to Education Secretary Miguel Cardona in September 2022,

It is not enough for the Department to assume religious schools are exempt, and then disregard the myriad areas of potential conflict application of these rules could have on religious schools. For example, religious schools always face the danger that the religious exemption may be modified, denied, or wrongfully applied. Further, requiring religious schools to prove applicability of the exemption or raise it as an affirmative defense in investigative proceedings is burdensome and likely to impose administrative and legal costs on religious schools. Perhaps worse, putting religious schools in a position where they must publicly claim a statutory exemption from a purported discrimination law—a process that requires them to expose internal documents and doctrinal positions that otherwise could remain private—imposes the risk of reputational and privacy harms that do not exist for other similarly situated schools.

In other words, the changes to Title IX pose the same danger to religious institutions as the RMA: They make it easier for those institutions to be sued. This, as Langhofer suggests, could cost them dearly in terms of money, time, and potential reputational damage.

Finally, there is the administration’s recently announced plan to rescind the so-called free-inquiry rule. This policy was instituted during the Trump administration to protect the free-speech rights of religious groups on public college campuses. But according to the Biden DOE, the rule is “redundant” because public colleges are already required to uphold the First Amendment.

The changes to Title IX make it easier for religious institutions to be sued.(Note that, by this standard, the RMA is also redundant, since the question it addresses was decided by the Supreme Court eight years ago in Obergefell v. Hodges. That should tell us something about the law—namely, that it was never really about same-sex marriage.)

The plan to ax the free-inquiry rule has gotten pushback from a number of free-speech advocacy groups, most notably the Foundation for Individual Rights and Expression, better known as FIRE. In the three years since the policy was enacted, FIRE’s Joe Cohn and Greg Gonzalez wrote in a comment to the DOE, “institutions have already made strides in protecting the free speech of students and faculty, and the regulations may have been a key part of those improvements.”

Indeed, according to the American Council of Trustees and Alumni (ACTA), two recent lawsuits by campus religious groups, against the University of Nebraska and Georgia Tech, illustrate the need for this rule. Said ACTA President Michael Poliakoff, “All student organizations at both public and private colleges and universities should be afforded equal opportunities to advance their missions so long as their actions do not conflict with constitutional protections.” That the Biden administration plans to rescind the rule for no good reason speaks to its general antipathy toward religion, particularly when perceived as a threat to “LGBTQ+ rights.”

By itself, this “minor” rule change might not seem important—especially to religious institutions, which do not appear to be directly impacted. But put it together with the challenges to religious belief on campus created by the RMA and the new Title IX provisions, and the administration’s intentions vis-à-vis religious freedom become crystal clear: to administer not a single killing blow but rather death by a thousand cuts.

Rob Jenkins is an associate professor of English at Georgia State University-Perimeter College. The views expressed here are his own.