This week, Alliance Defending Freedom (ADF) attorneys representing College of the Ozarks filed a petition with the U.S. Supreme Court challenging the Biden administration’s directive that universally redefines the meaning of “sex” and requires colleges to allow access to college dorms, showers, bathrooms, and other shared private spaces based on a students’ preferred gender identity rather than biological sex.
The directive, issued by the U.S. Department of Housing and Urban Development (HUD), falls under the Fair Housing Act, which has been updated to state,
“It is illegal discrimination to take any of the following actions because of race, color, religion, sex (including gender identity and sexual orientation), disability, familial status, or national origin: assign a person to a particular building or neighborhood or section of a building or neighborhood; limit privileges, services or facilities of a dwelling; provide a person different housing services or facilities.”
Based on this directive, Christian entities like College of the Ozarks, which separates its dorms and shower spaces according to biological sex for religious, safety, and privacy reasons, would be subject to fines up to six figures, punitive damages, and attorneys’ fees.
A U.S. district court initially sided with the Biden administration, refusing to issue an injunction. The Eighth Circuit Court of Appeals later affirmed the original court ruling, stating that the college cannot sue the Biden administration until HUD enforces the rule against College of the Ozarks.
John Bursch, ADF senior counsel and vice president of appellate advocacy, summarized the petition by saying,
“College of the Ozarks should be free to follow the religious tradition on which it was founded. The government can’t strip a private, faith-based institution of its constitutionally protected freedoms because it disagrees with its views about marriage and sexuality.”
“If the 8th Circuit decision stands,” he added, “College of the Ozarks could be forced to choose between violating its religious beliefs or risking intrusive federal investigations and significant enforcement penalties. We hope the Supreme Court will take this case to halt the government’s inappropriate order targeting religious institutions and to respect the privacy, dignity, and safety of female students.”
In an 18-page decision, Circuit Judge Steven Colloton, writing for the majority, stated that the college’s cause for filing a suit has no grounds “because it is speculative that HUD will file a charge of discrimination against the College in the first place. The College has not shown that there exists a credible threat that the defendants will enforce the Fair Housing Act against the institution based on its religiously-based housing policies.”
Circuit Judge L. Steven Grascz dissented, writing that the consensus view upholds a federal measure that “skirts the rule of law and undermines our values,” placing College of the Ozarks “under a sword of Damocles” that denies them “access to the courts because the sword has not yet fallen.”
He added, “This case highlights the corrosive effect on the rule of law when important changes in government policy are implemented outside of the normal administrative process.”
ADF’s petition filed with the U.S. Supreme Court emphasized the repercussions the college will inevitably face if the HUD rule were to be enforced. It argued:
“The [HUD] Directive requires the College to reverse its housing policies for 1,300 students. And, unless the Directive is enjoined, it makes the College cease statements of its policies, preventing it from following through on ongoing plans and communications for student housing consistent with its religious beliefs. This jeopardizes the College’s ability to function, causes emotional harm to students who rely on the College’s housing policies, and dissuades Christian students from attending the College.”
The petition also cites serious injuries the College will face as it pertains to its constitutional freedoms and ability to move forward as a university.
“The [HUD] Directive forces the College to choose immediately between three injuries: (1) obey the government and abandon the College’s religious policies and speech; (2) refuse the government and risk crippling investigations and penalties; or (3) cease providing student housing.”
On President Biden’s first day in office as President of the United States, he signed 17 executive orders, one of which was the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. This order re-defined what it means to discriminate on the basis of sex in the United States to include whatever gender or sexual orientation one feels like they are or identifies with at that time.
This, of course, defeats the entire purpose of having laws that protect individuals from sexual discrimination. Today, men can easily compete against women in sports, claim victory, and even expose themselves to women in the locker room, and the women cannot claim they are being discriminated against because the man exposing his genitalia to them says he’s a woman. In fact, women must tolerate men making ridiculous caricatures of womanhood simply because the men mocking them say they are women. It appears that in most cases, under President Biden, discrimination laws actually only protect the men who claim they are women.
When it comes to College of the Ozarks, a Christian school, their policies are not only in the interest of the safety and well-being of their students, but also in the interest of their religious values — specifically, a biblical view of men and women. This is especially clear in the practice of making male and female dormitories separate, a practice that up until recently had been historically and universally accepted.
Even in light of the current culture and the Biden administration’s actions, the College of the Ozarks was intuitive, proactive, and morally and constitutionally correct to challenge this rule on the argument that it violates the free exercise of religious belief.
However, the 8th Circuit Court’s decision spoke volumes about their distorted view of law. The concurring majority opinion argued that because the College has not proven that the HUD will enforce the Fair Housing Act against them, the College does not have a case. In other words, the College must wait until the law is enforced and charges are pressed against them before they are able to contest it on the basis of constitutional freedoms. So, as ADF has properly noted, the options of the College are to:
According to its ruling, the Eighth Circuit is suggesting that the College disobey the government and await penalty. If this is the case, we have a very low-functioning system of justice in this country.
Nevertheless, if the Supreme Court agrees to take up the College of the Ozarks petition and rule based on the Free Exercise clause, this could be a landmark case for religious liberty across the country, allowing institutions the right and responsibility to separate the private spaces of biologically male and female students without fear of the hand of the government.
Christians should pray that the Supreme Court exercises the courage to take up this case and the wisdom to rule righteously.
Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.