Plaintiffs are students who have attended religious colleges and universities nationwide. Plaintiffs bring this putative class action against the United States Department of Education (“the Department”) and Suzanne Goldberg in her official capacity as Acting Assistant Secretary for the Office of Civil Rights (“OCR”) for the Department (collectively “Defendants”). Plaintiffs challenge Defendants’ application of the religious exemption included in Title IX of the Education Amendments of 1972 (“Title IX”) to sexual and gender minority students who attend private religious colleges and universities that receive federal funding. Before the Court is Defendants’ Motion to Dismiss (“MTD”); Plaintiffs’ Motion to Amend its First Amended Class Action Complaint (“Mot. to Amend”); and Plaintiffs’ Motion for Preliminary Injunction (“MPI”). For the reasons explained, Defendant’s MTD, ECF No. 56, is GRANTED. Plaintiffs’ Mot. to Amend, ECF No. 148, is DENIED. Plaintiffs’ MPI, ECF No. 44, is DENIED. William Jessup University, Phoenix Seminary, Western Baptist College/Corbin University, and the Council for Christian Colleges & Universities (“Defendant-Intervenors”) also filed a Joint Motion to Dismiss, ECF No. 137, which is GRANTED in part and otherwise MOOT.
…First, under the three-prong analysis in Lemmon v. Kurtzman, “[a] practice will stumble on the [secular] purpose prong only if it is motivated wholly by an impermissible purpose.” Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th Cir. 1993). “A reviewing court must be reluctant to attribute unconstitutional motives to government actors in the face of a plausible secular purpose.” Id. (internal quotation marks omitted). “The secular purpose requirement does not ‘mean that the law’s purpose must be unrelated to religion—that would amount to a requirement that the government show a callous indifference to religious groups, and the Establishment Clause has never been so interpreted.’” Mayweathers, 314 F.3d at 1068 (quoting Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987)).
Like the Supreme Court did in Amos, the Ninth Circuit has upheld a religious exemption, determining that it constituted a secular purpose by protecting the exercise of religion in institutions from unwarranted and substantial infringement. See Mayweathers, 314 F.3d 1062 (holding that the Religious Land Use and Institutionalized Persons Act of 2000 “intends a secular legislative purpose”); see also Gaylor v. Mnuchin, 919 F.3d 420, 432 (7th Cir. 2019) (“Seeking to avoid government entanglement is a secular legislative purpose under Lemon”); Medina v. Catholic Health Initiatives, 877 F.3d 1213, 1231 (10th Cir. 2017) (“[W]e find that purpose—avoiding entanglement with religion—is a secular one.”); Pieszak v. Glendale Adventist Med.Ctr., 112 F. Supp. 2d 970, 996–97 (C.D. Cal. 2000) (“broad” religious exemption to California’s Fair Employment and Housing Act constituted “a permissible legislative purpose”).
Lastly, the Ninth Circuit has stated that “Congress derives its ability to protect the free exercise of religion from its plenary authority found in Article I of the Constitution; it can carve out a religious exemption from otherwise neutral, generally applicable laws based on its power to enact the underlying statute in the first place.” See Guam v. Guerrero, 290 F.3d 1210, 1220–21 (9th Cir. 2002) (citing Amos, 483 U.S. 327 (1987) and Gillette v. United States, 401 U.S. 437 (1971) (but upholding religious exemptions)).
Here, Plaintiffs do not plausibly demonstrate that the religious exemption was motivated by any impermissible purpose—let alone that Congress was “wholly” motivated by such an impermissible purpose. Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th. 1993). Rather, Plaintiffs conclude, without analysis or factual support, that “Defendants’ sponsorship of invidious discrimination conveys a clear message: religion-based invidious discrimination against LGBTQ+ students is endorsed by the federal government.” Yet, in the next paragraph, Plaintiffs contend that in enacting the religious exemption, “government has placed a neutral and generally applicable condition on funding that religious organizations are under no obligation to accept.” Id. at 27. Plaintiffs’ arguments are confusing and contradictory. Though Plaintiffs have much to say about Defendants, Plaintiffs have failed to demonstrate any impermissible purpose Congress had in enacting the religious exemption, especially in light the Supreme Court’s decision in Amos and other cases upholding religious exemptions.
…Second, the Supreme Court has stated that “[a] law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose.” Amos, 483 U.S. at 337. “For a law to have forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.” Id. The court has never indicated that rules that give special consideration to religious groups are per se invalid.” Id. at 338; see also Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, __ U.S. __ 140 S. Ct. 2367 (2020) (upholding agency’s authority to promulgate religious exemption to contraceptive mandate under Patient Protection and Affordable Care Act). Further, a law does not violate the Establishment Clause “merely” because it “happens to coincide or harmonize with the tenets of some or all religions.” McGowan v. Maryland, 366 U.S. 420, 442 (1961).
Here, Plaintiffs respond that the primary effect of the religious exemption is “advancing religion, sponsoring and financial [sic] supporting targeted discrimination on the basis of sex.” Opp. to MTD at 27. Plaintiffs argue that the religious exemption’s “primary function is to ensure financial support for institutions who engage in a religious practice of discrimination.” Id. Plaintiffs provide no developed analysis or facts to shed light on those assertions or explain how Defendants have advanced religion through their own activities and influence.
…Upholding the religious exemption to Title VII’s application, the Supreme Court recognized that “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” Amos, 483 U.S. at 336. “A relationship results in an excessive entanglement with religion if it requires sustained and detailed interaction between church and State for enforcement of statutory or administrative standards.” Williams, 764 F.3d at 1015–16 (internal quotation marks omitted). The Supreme Court stated: “It cannot be seriously contended that” Title VII’s religious exemption “impermissibly entangles church and state.” Amos, 483 U.S. at 339. Rather, the exemption “effectuates a more complete separation of the two.” Id.; see Gaylor, 919 F.3d at 434 (though “some level of church-state interaction is unavoidable,” “[t]he alternative” to the religious exemption would be “more entangling”).
Here, Plaintiffs allege that the religious exemption creates an inextricable and excessive entanglement between government and religion because administrative agencies are charged with implementing the statute, and that statute requires a determination of when Title IX in inconsistent with a school’s religious tenants. Id. at 28. However, the religious exemption here is materially indistinguishable from that in Amos. There, the Supreme Court upheld the exemption under Lemon, and explained that in exempting religious organizations from complying with Title VII, that exemption prevented interference with the religious organizations’ ability to define and carry out their religious missions. Amos, 483 U.S. at 328.
In this case, religious exemption also prevents the sort of entanglement Amos—in applying Lemon—sought to avoid. In the absence of the religious exemption, Defendants must scrutinize religious schools’ compliance with the anti- discrimination policies of Title IX, even if such compliance would conflict with the schools’religioustenets. Plaintiffs’allegationsdonotplausiblydemonstratehowthe relief they seek in enforcing Title IX in religious schools is not the very excessive entanglement Plaintiffs argue is impermissible. The proposed SAC and supplemental briefs are legally insufficient to cure those defects and so amendment is futile.
Ann Aiken | “United States District Court Judge” | United States District court for the District of Oregon, Eugene Division
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When this case made the news two weeks or so ago, the hosts of a podcast by the mainline Presbyterian denomination that I occasionally follow to keep tabs on the latest heretical lines didn’t go apoplectic over the defendants receiving a religious exemption, but clearly demonstrated their wholesale ignorance of the case history on religious exemptions. They thought these exemptions were bad and accepted the guilt of the colleges. Obviously, these two, one of whom is an partnered gay male, ordained by this denomination, had never given religious liberty and case law 1A protections any serious thought, except when it conflicts with leftist ideology and false theology, and then it is wrong.