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Ninth Circuit:
School Unaffiliated With Church May Bar Gay Students
Panel Says Title IX’s Bar on Discrimination ‘On the Basis of Sex’ Which Applies to an Entity ‘Controlled by a Religious Organization’ Can Be Claimed by Independent Seminary Governed by Board of Directors
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a school of theology could not be liable for discrimination based on sexual orientation under a Title IX exemption for entities “controlled by a religious organization” although the school, governed by a board of directors, was independent of a church or other religious body.
A memorandum opinion—signed by Judges Michelle T. Friedland, Richard A. Paez, and Paul J. Watford—affirms the dismissal with prejudice of an action filed against Fuller Theological Seminary (“FTS”) by Joanna Maxon and Baptist minister Nathan Brittsan, each of whom was expelled based on marrying a person of the same sex. FTS does not recognize same-sex marriages and deemed each student to be engaged in “unbiblical sexual practices,” in violation of the seminary’s standards of conduct.
Maxon was first to sue, in 2019; a first amended complaint of Jan. 7, 2020 adds Brittsan as a plaintiff. The pleading sets forth:
“This is a civil rights case about two students who were expelled from their graduate program for one reason: they married someone of the same sex.
“Joanna is a wife and mother who hoped to use her degree to become a better supervisor, to advance her career and to open up new opportunities for serving her community. Joanna financed her education through federal funding from the U.S. Department of Education.….
“”Nathan is a husband, pastor and graduate student who hoped to use his degree to advance his career within his denomination. Nathan financed his education through federal funding from the U.S. Department of Education.
At issue is whether a cause of action exists under Title IX of the Education Amendments of 1972 which provides in 20 U.S.C. §1681(a) that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” with enumerated exceptions. One exception is that “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[.]” Maxon and Brittsan argued that FTS does not qualify for the exemption because it is a free-standing entity, not “controlled by a religious organization.” District Court Judge Consuelo B. Marshall rejected that contention, ruling Oct. 7, 2020:
“Here, although the text of the Religious Organization Exemption may be read to require the ‘religious organization’ and ‘educational institution’ to be two separate entities, the ordinary meaning of the term ‘organization’ is sufficiently broad to include the board of directors.
Furthermore, the board of directors exerts control over FTS. as they are responsible for implementing the policies at issue.”
Sexual Standards Policy
She went on to say:
“FTS expelled Plaintiffs because it determined their same-sex marriage violated the Sexual Standards Policy, which defines marriage as ‘the covenant between one man and one woman’ and prohibits sexual activity outside the confines of marriage, based on its interpretation of the Bible….
“Although Plaintiffs allege that same-sex marriage does not violate the policies of FTS…and that the Fuller Defendants never asked Plaintiffs whether they engaged in homosexual activities with their respective spouses…, the Sexual Standards Policy limits its definition of marriage to a heterosexual union and prohibits extramarital sex. FTS interpreted this policy to mean that same-sex marriages violate the religious tenets of the school. The Court is not permitted to scrutinize the interpretation FTS gives to its religious beliefs.”
Ninth Circuit Opinion
The Ninth Circuit said yesterday that while Title IX “does not define the term ‘religious organization’ or address whether it must be legally separate from the ‘educational institution’ it controls, the ordinary meaning of ‘organization’ is broad enough to encompass an entity that is wholly contained within another entity….Dictionaries consistently define ‘organization’ to mean ‘[a] group that has formed for a particular purpose,’…, with no requirement that the group be distinct or separate…”
The opinion continues:
“While Plaintiffs argue that ‘[t]he most natural grammatical meaning’ of the statutory language is that it requires ‘two distinct entities,’ one to exert control and one to be controlled, they cite to no case law or grammatical rule to explain why we should adopt that interpretation. Indeed, courts and statutes frequently use the phrase ‘controlled by’ to describe the relationship between a board of trustees or directors and an underlying organization.”
The case is Maxon v. Fuller Theological Seminary, 20-56156.
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