• The U.S. Court of Appeals for the 9th Circuit recently rejected an attempt to remove religious freedom protections in Title IX.
• The court found that exemptions for religious colleges and universities were consistent with the original understanding of the First Amendment.
• Congress could further secure the protections upheld by the court.

​In 2021, we wrote about a lawsuit brought by students and prospective students of religious universities who sought to end a significant religious freedom protection for religious schools contained in a 1972 federal law. Recently, a federal appeals court known for its typically progressive stances ruled in favor of religious freedom.

The protection is part of Title IX, the prohibition of sex discrimination by universities receiving any form of federal funding. That law includes a provision that a school “controlled by a religious organization” would not be considered in violation of the law if the government’s proposed “application of [Title IX] would not be consistent with the religious tenets of such organization.”

The plaintiffs said they “experienced discrimination on the basis of their sexuality or gender identity” and argued that the religious exemption to Title IX – by allowing schools to establish policies based on their religious beliefs about sexuality – constituted an unconstitutional establishment of religion.

At the end of August, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit rejected that claim and upheld the religious exemption.

Relying on U.S. Supreme Court precedent, the court examined legal history to see if the exemption in this case was consistent with the “historical practices and understanding” of the nation. The court noted the “history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.”

The court also found that many prior instances of religious exemptions “evince a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause.” Thus, religious exemptions have “withstood the critical scrutiny of time and political change.”

The court rejected the plaintiffs’ argument that the exemption preferred religion over irreligion since under the First Amendment the government is sometimes required to accommodate religion. Finally, the court found that the Title IX exemption advanced an important government interest in “limiting government interference with the free exercise of religion.”

There is one more aspect of this case worth noting. Although it was not essential to the court’s decision, the plaintiffs had specifically complained about a practice of the U.S. Department of Education of allowing religious schools to seek the exemption before or after a complaint is made against the school. This allows schools to invoke an exemption when a novel situation arises. For instance, in the 1970s, a religious school might have assumed an exemption would be needed where a student complained about a policy against co-ed dorms. But today, the range of potential concerns would be much broader, and the school might need to adjust to new requests or complaints from students that are at odds with its religious mission but may not have been anticipated prior to the specific complaint.

The current approach of the Department of Education prevents unnecessary interference with religious schools’ ability to determine what constitutes their mission and how they will carry it out.

Currently, however, that protection is dependent on agency policy. If Congress were to codify it, the protection would not be liable to change with changes in presidential administrations or administrative personnel.

For constitutional protections to be fully secure, they must be respected by, and protected by, all branches of government. The 9th Circuit decision is a good example of judicial protection of religious freedom. That freedom will be more secure as the other branches show similar deference to it.