The case for Title IX’s religious exemption is astonishingly weak

Does anyone think it makes sense for the federal government to subsidize discrimination that the federal government has outlawed?

Because that’s exactly what it’s doing by issuing religious exemptions to schools like Carson-Newman University, a Southern Baptist institution in Tennessee that recently received a waiver under Title IX that will allow them to bar gays and unwed mothers from attending their school.

From The New Civil Rights Movement:

Back in May, University President Dr. Randall O’Brien sent a letter to the U.S. Dept. of Education, asking for an exemption from Title IX, a federal law that prohibits discrimination on the basis of sex by “any education program or activity receiving federal financial assistance.”

That exemption, “a waiver that allows the school to ban gay students, unwed mothers, women who’ve had an abortion and even students who may be pregnant,” WVLT reports, was granted. Presumably, it would apply to faculty and other employees also.

As O’Brien told Carson-Newman’s local ABC affiliate in an interview, “this is who we are”:

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As The Column reported last week, Carson-Newman isn’t alone. 27 religious institutions have applied for religious exemptions under Title IX in the past year. The religious exemption clause was originally included in the 1972 law to allow certain schools to deny leadership roles to women, but waivers under the provision were rarely requested. However, since the Obama administration announced that its interpretation of Title IX would expand to include sexual orientation and gender identity, conservative Christian schools have rushed to take advantage of the exemption — holding webinars to share language and best practices in order to ensure that their waivers will be granted. True to form, Carson-Newman’s waiver request is basically a carbon copy of requests made by Anderson University and fourteen other schools associated with the Southern Baptist Convention.

All of these schools have sought exemptions that would allow them to (among other things) expel gay, lesbian, bi and trans students, bar faculty from living with same-sex partners on campus and fire staff due to their sexual orientation.

Church and State, via Shutterstock

Church and State, via Shutterstock

To be clear, nothing in federal law prohibits these schools from engaging in these types of discrimination. The Obama administration’s interpretation of Title IX would only prohibit those schools from engaging in such discrimination while receiving federal funds. And it strains the imagination to think of a good reason why federal funds could or should go to schools that are completely up front about their intentions to engage in discrimination that is specifically prohibited by a relevant non-discrimination law.

The argument against direct cash transfers going to explicitly religious organizations is basically the same as the argument against giving similar organizations, such as churches, tax-exempt status: not only is the government prohibited from endorsing the establishment of religion, we generally find it especially odious for the government to give money to institutions committed to discrimination that the government has outlawed.

Since 1954, religious organizations have been exempted from paying federal taxes under the same exemptions that were granted to all non-profit organizations in the early 1900s. Those who advocate for the maintenance of said tax exemptions argue that eliminating them amounts to a de-facto restriction on the free exercise of religion, as some unspecified but, as we are told, significant number of churches would go under without these tax breaks. However, as I’ve written before, that isn’t a defense of the free exercise of religion; that’s a defense of the assisted exercise of religion:

Ending the tax exempt status for religious institutions doesn’t ban those institutions and it doesn’t constitute, as [Damon] Linker claims, “persecution.” All it means is that the government isn’t going to endorse their practices or give them extra help. Orthodox Jews are more than welcome to continue to turn away interfaith couples, and the Mormon Church is more than welcome to turn away same-sex couples, so long as they don’t do so with the direct endorsement of the government.

This same principle is why Bob Jones University — one of the nation’s highest-profile religious institutions — lost its tax-exempt status in 1983. The University insisted on discriminating against African-American students, and the (notoriously irreligious) Reagan administration decided that the federal government couldn’t endorse that sincerely-held religious belief.

If that’s reason enough to get rid of preferential treatment for religious organizations in the tax code, the argument against the federal government actively giving money to schools, as opposed to simply not taking it from them, is even stronger. Shielding religious organizations from taxation under the same umbrella that exempts secular non-profits is one thing — at least it uses a nominally secular rule to produce a functionally religious outcome. But religious waivers such as the ones allowed under Title IX are issued under no such pretense. They very clearly represent the government’s commitment to give federal funds to organizations that are up front about their intentions to engage in discrimination that would otherwise be illegal.

If Carson-Newman or any of their collaborating institutions want to expel trans students and unwed mothers, or fire LGBT faculty, the First Amendment protects their right to do so. That is, as long as they can pay the bills without help from the government. That’s because the most basic interpretation of the same amendment also prohibits special licenses sanctioning such discrimination — licenses that give said institutions access to government subsidies that they wouldn’t otherwise be allowed to receive.

If these schools really wouldn’t be financially viable without federal funds, then they should at least have to choose whether giving up their commitment otherwise-illegal discrimination is a price they’re willing to pay for their continued existence. For all the religious conservative hand-wringing about LGBT equality amounting to “special rights,” exemptions in federal non-discrimination laws that let religious organizations play by a separate, looser set of rules are where “special rights” are actually being granted.

Carson-Newman University’s code of conduct states, in part, that:

Persons who choose to become a part of the Carson-Newman family are expected to embrace moral, ethical, and biblical values on and off campus. In the area of sexuality, lifestyles consistent with biblical teaching are expected. Specifically stated, sexual intimacy is to be expressed exclusively inside the marriage covenant which shall be between a man and a woman. Our Christian values serve the best interests of all within the Carson-Newman family.

The University is entitled to these values, and they’re entitled to enforce them in their admission, enrollment and hiring practices. They just shouldn’t be allowed to do so with the federal government’s help.

It’s time to repeal Title IX’s religious exemption clause.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • LanceThruster

    “Jeebus, protect me from your followers.”

  • The whole point of the post was that the religious exemption — the “black letter law” — is bad and should be eliminated. Not that it doesn’t exist. You’re allowed to disagree, but you’ll make a stronger point if you disagree with my actual argument.

  • Mike_in_the_Tundra

    I’m certain you think you have made some type of point, but everyone knows that. If you don’t mind your taxes supporting a Wiccan based school, be happy.

  • Jonathan

    “Does anyone think it makes sense for the federal government to subsidize discrimination that the federal government has outlawed?”

    Contrary to fact. From the text of Title IX itself:

    “(3)Educational institutions of religious organizations with contrary religious tenets

    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;”

    The “case” for religious Title IX exemptions is not “astonishingly weak”: it’s black letter law.

    Love it or hate it, Rule of Law in the United States allows people to disagree with you.

  • There are religious-based colleges from coast to coast that discriminate based on sex and sexual orientation. This has been true for as long as I’ve been aware that there are colleges. I even attended one as an undergrad. (Women had a dorm curfew, for example, while men did not.) I’m surprised this is just now coming up as an issue but all these schools get government funding and religious organizations love denouncing the government while feeding at the federal trough.

  • I was thinking that there’s quite possibly a violation of the Establishment Clause in there somewhere.

  • Hue-Man

    Another approach to this issue is to make graduates of these programs permanently toxic!

    Today: “A B.C. Supreme Court judge has overturned the B.C. Law Society
    referendum denying accreditation to graduates from Trinity Western
    University.”

    “In his judgement
    released Thursday, Hinkson said the Benchers had acted improperly when
    they allowed the LSBC members to hold the later referendum, essentially
    delegating the decision to the members.”

    http://www.cbc.ca/news/canada/british-columbia/trinity-western-law-society-bc-supreme-court-1.3359942

    TWU Law School AKA “Liberty Law North” has not opened mainly because its graduates would not be able to practice law in two large provinces, B.C. and Ontario. By ruling only on procedure, the judgment did not address the conflict between religious bigotry of TWU’s student covenant and rights of lesbians and gays.

    The issue will ultimately reach the Canadian Supreme Court. I doubt TWU will get the same favorable result as it did when it took a similar dispute with the BC College of Teachers to the Supreme Court in 2001.
    https://en.wikipedia.org/wiki/Trinity_Western_University_v_British_Columbia_College_of_Teachers

    BTW, “BC Supreme Court” despite its lofty name is the initial level of provincial court; BC Court of Appeals then Supreme Court of Canada rank above it.

  • JaneE

    Bigotry and hatred are now the defining characteristics of conservative Christianity in America. Considering that the existence of the Southern Baptist denomination is founded in racism and love of slavery, it isn’t really that surprising.

  • Exactly this.

    It’s not unlike many other situations where federal and state taxpayer money is basically subsidizing the normal operations of religious organizations. Whether it’s vouchers or subsidies for security guards or government grants, what’s happening may be within the bounds of the laws in question, but the laws themselves give every indication of being unconsitutional in that they clearly favor certain religions over others.

  • Exactly. I’m not saying that the government should reject Carson-Newman’s waiver request under the exemption. Given the law as written, it’s being correctly applied. Like you, I’m saying that the exemption shouldn’t have been included in the first place. And yeah, given Congress’ makeup, it’s certainly here to stay for a while.

  • dcinsider

    It might help to get some perspective on this. Read this blog post.

    http://title-ix.blogspot.com/2014/07/understanding-religious-exemptions-from.html

    Sometimes things seem a lot worse than they are. I would not suggest that there should be ANY exemptions from Title IX, but the application of the criteria for these exemptions seems to be appropriate, even if you believe the exemption itself is not.

    Changing exemption criteria would require an act of Congress. Good luck on that.

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