September 28, 2022
In a recent address at Brigham Young University, President Dallin H. Oaks, a member of the First Presidency of The Church of Jesus Christ of Latter-day Saints, recounted the university’s experience with federal regulations meant to enforce Title IX.
Title IX is a federal statute enacted in 1972 that prohibits discrimination on the basis of sex in educational institutions receiving federal funds. It specifically provides “this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”
This reasonable accommodation ran into a hitch a few years after the law was passed. In its initial proposed regulations for enforcing Title IX, the Department of Health, Education and Welfare (HEW) created a procedure for religious universities to seek the exemption allowed by the law. As a detailed analysis of the regulations and their implementation summarized the HEW position: “Educational institutions controlled by religious organizations that claim exemption to Title IX ‘shall do so by submitting in writing to the Director a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.’”
This was a challenge for religious schools. The statute recognized their right to act consistent with their faith commitment. But the regulation made the administrative agency the arbiter of the exemption, creating a situation where religious schools were subject to the agency if they wanted their rights recognized.
As president of the American Association of Presidents of Independent Colleges and Universities and of Brigham Young University, Dallin H. Oaks spoke out forcefully against this approach, reminding Congress and HEW that religious exemptions should not be subject to bureaucratic oversight. While BYU strongly supported the policy of nondiscrimination, it expected that its constitutional and statutory rights should be treated as inherent rather than the grant of a federal agency.
Eventually HEW recognized this reality and notified BYU of its intention to allow the university to act on its beliefs without interference from the department.
As President Oaks asked in his recent address, “Where would BYU and other church-related colleges and universities be today if BYU had not dared to resist the government’s 1974 proposal to significantly expand its control over private higher education?”
As in other instances, the efforts of a religious minority to secure its ability to live out its faith provided greater protection to others.
However, some of the recent high-profile religious freedom cases have involved religious groups like Protestants and Catholics that are, or recently were, in the majority.
In the early 1970s, a landmark religious freedom decision involving the Amish was brought by a prominent Catholic attorney. In 2020, the Supreme Court cited that case in a decision vindicating the right of Catholic Charities to operate consistent with its religious mission.
Religious groups are not the only ones to benefit from an expansion of freedoms. Conscientious objectors who secure the right not to serve in the military benefited from a precedent created to respect the convictions of Quakers.
A New York Times article recently pointed to another potential benefit for secular groups from the protection of people of faith in a pending Supreme Court case. Constitutional lawyer David French described the biggest religious freedom case now before the court:
This is a case out of Colorado where a website designer refused to design websites for a same-sex wedding. This is a truly important case about the collision between anti-discrimination laws and, for lack of a better term, pure expression, or artistic expression. I think Americans, regardless of where you stand on same-sex marriage, should be very leery of granting the government the power to determine when a creative professional can be compelled to create art. So, for example, should a graphic designer be compelled to create art for a Patriot Front event and then be subject to litigation or punishment on the basis that they’re racist for disagreeing because the Patriot Front is overwhelmingly white?
The Title IX example shows how this works. In many cases, increasing the recognition of the rights of unknown or unpopular minorities cascades to the benefit of larger segments of society. That is a calculus worth our attention.
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