Another day, another Religion News Service report about clashes between the First Amendment and the doctrines of the Sexual Revolution.
As is the norm, this news story about a crucial First Amendment issue does not include the term “First Amendment.”
As is the norm, this RNS story does not include material about how many, not all, private faith-based schools — they exist on left and the right — require students, faculty and staff to sign covenants in which they choose to join a community that is defined by a set of core doctrines that members promise to follow or, at the very least, not to attack.
It is always crucial for journalists, when covering these stories, to ask if a private school has a covenant of this kind. If one does not exist, then this radically strengthens the case of students who argue that the school is discriminating against them.
As is the norm, the RNS story includes one tiny bite of information from the bad-religion people, while framing the conflict in the arguments of the good-religion people. In this case, alas, the bad-religion people won. The headline: “Federal court dismisses LGBTQ students’ class-action discrimination lawsuit.”
As always, let me stress that there is an important story here. Some Christian schools do a bad job — when recruiting and orienting students — of being honest about their covenants or handbooks. As I said, there are schools that do not have covenants, which means students (and parents) may not know what they are getting into when they choose to enroll at one of these private schools that are “voluntary associations” under the First Amendment. Hold that thought. Here’s the overture:
There is no legal remedy for LGBTQ students who claim they were discriminated against at their religious universities, an Oregon federal district court ruled in a high-profile case late Thursday (Jan. 12).
The judge dismissed the class-action lawsuit filed in March 2021 on behalf of about 40 students and former students at religious schools nationwide. The case, Hunter v. the U.S. Department of Education, claimed that the department failed to protect LGBTQ+ students at religious schools from discrimination.
At issue is a religious exemption from Title IX, the civil rights statute that prevents discrimination on the basis of sex, sexual orientation and gender identity. The plaintiffs argued the exemption allows religious schools to discriminate against them.
Actually, there is a legal remedy for LGBTQ students in these kinds of cases. Students can choose to attend colleges and universities with doctrinal covenants that fit their own religious beliefs and those of their families.
These are, after all, private schools. Here’s the question judges are facing: Are private schools that are defined by traditional religious doctrines uniquely dangerous and, thus, students that choose to attend them should not receive benefits (think student loans) given to those who choose to attend secular and religious private schools whose doctrines are affirmed by government officials?
This brings us to the Big Idea statement:
The lawsuit, perhaps the first of several class-action suits against religious universities, is part of a broader reckoning happening in religious higher education over the last two years. LGBTQ students have staged walk-outs, monthlong sit-ins and protests advocating for LGBTQ-inclusive policies for university students and staff, and students at Yeshiva University filed a lawsuit of their own against the Orthodox Jewish school for refusing to recognize an LGBTQ student club.
Does anyone sense a bit of hope in the RNS use of “perhaps” in the phrase “perhaps the first of several class-action suits against religious universities”? It is true that these lawsuits will continue, with a showdown at the U.S. Supreme Court almost certain.
By the way, note the reference to the important Yeshiva University case. A key element of that story is that — as Julia Duin noted early on — this university did not have a clear doctrinal covenant that students were required to sign. For more information on that, see this previous GetReligion post: “What do you know? Doctrinal-covenant fights can occur on an Orthodox Jewish campus.”
So, why did the judge rule in favor of the bad-religion people?
If you want to know more about that, read the RNS report and then dig into a think piece at The Dispatch by that well-known religious conservative and First Amendment pro David French (who will soon head to the editorial-page team at The New York Times).
As you would expect, the headline on the French piece has a different slant: “How a Progressive Judge Helped Preserve American Pluralism.”
Unlike the RNS piece, French focuses on the First Amendment and the freedom of voluntary association — stressing the role this right plays in a society in which people with radically different beliefs attempt to tolerate one another, in the best sense of the word “tolerate.” Here is part of his overture:
Before I talk about a new court ruling out of Eugene, Oregon, I want to talk about an indispensable freedom to the American experiment. It’s called the “right of expressive association,” and it refers to the right of Americans to “join with other people to promote a particular outlook.” As George Mason University law professor David Bernstein has written, the right of expressive association “is a necessary adjunct to the right of freedom of speech.” In other words, the right of free speech is fatally degraded unless we have the right to join with others to promote our shared views.
Think of a political party. Or an advocacy organization. Or a church. Or a church school.
French noted that the judge, in this case, didn’t focus on freedom of association issues. However, the “freedom of association implications were immense.” And, of course, this case pushed everyone into “culture wars” territory.
But here is where things get more interesting and French heads into territory avoided by RNS:
Was the fix in? After all, the case was filed in Eugene, Oregon, and not one of the many other jurisdictions where Christian colleges are located. Were the plaintiffs forum shopping for the most favorable judge? Also, the suit was filed against the Biden administration’s Department of Education. Would they defend the case, or would they settle on favorable terms with their ideological allies? Indeed, the Council for Christian Colleges and Universities intervened in the case to try to guarantee a strong defense.
These fears were magnified when the case was assigned to a progressive judge, Ann Aiken, a Clinton appointee whose husband is the former chair of the Oregon Democratic Party. One of her previous claims to national fame was her 2016 refusal to dismiss a rather novel claim brought by “group of young people” who argued that they had a “substantive due process right to a stable climate.”
But a funny thing happened on the way to the fix. The Biden administration pledged to “vigorously” defend the religious exemption (angering some of its LGBT allies), and … the religious exemption won, at least for now. Judge Aiken issued a 40-page opinion that not only denied the plaintiffs’ request for an injunction against the religious exemption, it dismissed the case entirely. And she did so using language that clearly indicated she recognized the impact of generations of supermajority Supreme Court jurisprudence protecting religious liberty.
Why did the judge do this? French notes that her opinion “quoted the Supreme Court again and again.”
It’s possible, in other words, that this First Amendment case may have had something to do with decades of high-court First Amendment rulings on religious liberty and, yes, voluntary association.
Finally, French fires this shot — as he is known to do — at some conservative media sources.
To recap, a coalition of students sued the Biden Department of Education, seeking to roll back religious liberty and place a high price on the autonomy of religious organizations, the Biden administration defended religious liberty, and a Clinton-appointed judge dismissed the case, relying in part on unanimous Supreme Court precedent decided by both Republican and Democratic-appointed justices.
This is not exactly the culture war narrative you hear on cable news.
Yes, and this is not exactly the culture war narrative you hear at Religion News Service.
Stay tuned. This will end up, again, at the U.S. Supreme Court. The enemies of “voluntary association” — at least associations on the doctrinal right — have patience, lots of money and strong mass-media support.
FIRST IMAGE: Graphic featured with a YouTube posting — “Christian Colleges Face Lawsuit For Being Too Christian” — by the conservative Freedom Project.