Another Oregon university has asked for a Title IX waiver to allow the school to discriminate against transgender people. Multnomah University in Portland has asked the federal government to exempt it from gender identity laws claiming that its religious beliefs disallow acceptance or employment of transgender people. The school already received an exemption in 1989 to exclude gay and lesbian students. This new petition follow's last year's successful petition by George Fox University to exclude a transman from university men's housing.
The argument that church-related schools be exempt from certain federal laws has been in the spotlight a number of times this year. Following the Supreme Court's ruling on marriage equality, a number of conservative Christian leaders and organizations framed the ruling as an infringement on religious liberty. In a June interview on NPR with Audie Cornish, the founder of Vision America claimed, "I believe today, the Supreme Court used the 14th Amendment to literally deal a fatal blow to the First Amendment. This ruling cannot coexist with full freedom of religion in America." His concern was that the federal government will require religious schools, hospitals, and social service agencies to recognize marriage equality, thereby abridging their religious freedom to practice their faith as they please.
The First Amendment is clear. Churches have the right to order themselves however they choose, preach and teach whatever they believe, and employ whomever they want when those employees are acting in a religious capacity. Religious institutions can do the same--as long as they do not accept federal funding. With federal funding come federal laws. For church-related universities, then, excluding LGBT students and employees is not a case of religious liberty but one of federal dollars.
Church-related universities receive millions of dollars in federal funding, usually in the form of student financial aid such as Pell Grants, direct loans, and work-study. These schools also receive federal tax exemptions as non-profit educational institutions. But to receive federal funds, these schools must abide by federal law. The loophole for universities like Multnomah and George Fox, however, is that federal law allows exemptions if a school has a religious belief that contradicts the law.
In other words, these schools can apply for an exemption that allows them both to discriminate and to receive federal dollars.
This exception is not, as these schools would argue, about religious liberty. It is about money. After all, if these schools do not accept federal funding, they are free to run themselves completely without regard for federal anti-discrimination laws. That is religious liberty. The problem, however, is that these schools want access to federal funding.
Religious liberty, the right to practice one's religion, then, is not at stake. What is at stake are federal dollars. The government has been willing in the past to restrict funding to church-related schools that have practiced discrimination.
In Bob Jones University v. United States (1983), the Supreme Court ruled that the IRS can deny tax exemptions to religious institutions that practice racial discrimination. At that time, Bob Jones University had racially discriminatory admissions policies, and so the IRS denied the school tax exempt status. The school sued the federal government, but the Court held that the IRS had not violated Bob Jones' First Amendment right to free exercise nor had it violated the establishment clause. The Court found that the government's interest in ending racial discrimination was significant and outweighed the burden placed on the institution. The Court also held that the IRS policy was neutral and had a secular purpose, requirements of the Lemon Test (Lemon v. Kurtzman, 1973) to determine if a law has the effect of establishing religion.
The question now is whether or not church-related institutions will be held to the same standard in relation to issues of gender, gender identity, and sexuality. In response to the ruling on marriage equality, one Republican legislator introduced a "First Amendment Defense Act." He explained, "We need to draw lines around the power of government, lines that are there to protect the people from the overpowering influence of government -- an overpowering influence that can, from time to time, trample on religious freedom."
Demanding that institutions that receive federal funding meet anti-discrimination laws is not trampling on religious freedom. These same institutions are free to reject federal funding and then discriminate in line with their religious beliefs.
But receiving federal funding implies a responsibility to meet federal laws. The federal government should not be funding discrimination.
Federal funding is not a form of religious freedom. It's a government entitlement, not an article of faith or a religious practice. Despite the rhetoric, religious liberty is not at stake when the federal government asks religious institutions to abide by federal law. Church-related universities can choose to believe what they want and practice their faith in whatever ways they choose. What they should not be able to is to do is to discriminate against transgender, lesbian, and gay students and staff and receive federal benefits while so doing.