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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