Bob Jones Redux: The Question SG Verrilli Was Unwilling to Answer in Obergefell Now Needs to Be Answered

LGBTQ students sue Department of Education to require that federally-funded religious colleges "respect the sexual orientation, gender identity and gender expression of their students."

Obergefell v. Hodges was decided about 6 years ago. During the oral argument, Justice Alito posed a critical question to Solicitor General Don Verrilli. He asked whether religious colleges that favor traditional marriage could lose their tax exempt status. Verrilli was unwilling, or perhaps unable, to answer the question. Bill Eskridge and Chris Riano write in their excellent new book that "the issue had never come up in his preparation for the argument." Here is the exchange.

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?

General Verrilli: You know, ­­I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is –it is going to be an issue.

Six years later, Alito's question is no longer "going to be an issue." It is "an issue."

This week, 30 LGBTQ students filed a class action complaint against the Department of Education in the District of Oregon. The plaintiffs allege:

The U.S. Department of Education is duty-bound by Title IX and the U.S. Constitution to protect sexual and gender minority students at taxpayer-funded colleges and universities, including private and religious educational institutions that receive federal funding. The religious exemption to Title IX, however, seemingly permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced….

Religious exemptions may be constitutionally permissible, or even compelled, when the government regulates private action, even where some amount of harm to members of the community is involved. However, when the government provides public funds to private actors, like the colleges and universities represented by Plaintiffs, the Constitution restrains the government from allowing such private actors to use those funds to harm disadvantaged people. This Constitutional principle remains true even when the private actors are operating according to sincerely held religious beliefs, and it remains true whether the people they are harming are racial or ethnic minorities, sexual or gender minorities or those who reflect multiple, intersecting identities.

The plaintiffs seek sweeping relief:

a. Prohibiting Defendants from granting further religious exemptions to Title IX as applied to sexual and gender minority students;

b. Rescinding all prior religious exemptions to Title IX as applied to sexual and gender minority students;

c. Mandating that Defendants treat Title IX complaints from sexual and gender minority students at all taxpayer-funded religious colleges in the same manner as complaints from sexual and gender minority students at taxpayer-funded nonreligious colleges.

d. Requiring the Department to ensure that all federally-funded educational institutions respect the sexual orientation, gender identity and gender expression of their students.

The effect of this suit would be comparable to withdrawing tax exempt status. How many of these institutions can afford to abjure all federal money? Perhaps BYU and Baylor. Maybe Liberty University. I doubt others could swing it. If this suit is successful, most religious colleges will have to comply, or close. Bob Jones, of course, is the first college listed in the complaint. But Notre Dame, quite conspicuously, is not mentioned. The Fighting Irish are not far behind. All schools with any codes governing sexual relations are at risk.

And make no mistake. We are not simply talking about traditional four-year colleges with religious missions. One of the plaintiffs attended the Fuller Theological Seminary. The complaint states that he "only attended for several days before the school expelled him for being gay and married to a man." If the Plaintiffs are successful, even theological seminaries would have to decline all federal funding--and perhaps state funding. Espinoza would be diluted. The government will fund religious schools, so long as they eschew traditional teachings on sexuality.

We are looking at a potential revolutionary change in how religious colleges function. Tax-exempt status is next. Barely six years after Obergefell, the courts will soon have to confront these issues. And, I fear, Justice Gorsuch's Bostock opinion has already settled the Title IX statutory issue. The Plaintiffs assert that the current exemptions violate substantive due process. As a formal matter, RFRA would not trump the 5th Amendment. Perhaps if the Court overrules Smith, there would be a direct conflict between the 5th Amendment and the Free Exercise Clause. The stakes of Fulton grow greater by the day.

For those curious, the case was assigned to Judge Ann Aiken. She was also the judge who presided over the Juliana class in the juvenile climate change litigation. Judge Aiken found there was a fundamental substantive due process right to a clean environment. This assignment is not auspicious for religious colleges.

Currently, the Acting Assistant Secretary for the Office of Civil Rights, U.S. Department of Education is Suzanne Goldberg, formerly a professor at Columbia Law School. She founded Columbia's Sexuality and Gender Law Clinic. I suspect she may be sympathetic to this claim. I worry about a "sue and settle." For example, the Department of Education would enter into a consent decree with the class, forcing the federal government to accept new responsibilities without going through the formal rulemaking process. And once that consent decree is in place, it will be very difficult for other groups to challenge the arrangements.

I expect religious colleges will try intervene. I have not researched this issue, but the class will likely argue that intervention is not appropriate. If intervention is denied, then "sue and settle" becomes even more likely. And Judge Aiekn would preside over those proceedings.