In Hunter v. U.S. Department of Education, (9th Cir., Aug. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the exemption available to religious educational institutions from Title IX's ban on sex discrimination (including sexual orientation and gender identity) does not violate the Establishment Clause or equal protection guaranties. The court said in part:
Any practice that was “accepted by the Framers and has withstood the critical scrutiny of time and political change” does not violate the Establishment Clause....
Given the dearth of historical equivalents, ... tax exemptions are the most analogous case to Title IX’s statutory exemption.... Absent additional historical evidence—and Plaintiffs point us to none here—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.
Having considered the history of religious exemptions at or near the Founding, the history and tradition test requires us to look next to the “uninterrupted practice” of a law in our nation’s traditions.... The Department identifies a relevant tradition in “modern legislative efforts to accommodate religious practice.” ...
... [T]here is no evidence in the record that the exemption here “was drafted with the explicit intention of including particular religious denominations and excluding others.”...
... Here, when a school claims an exemption, the Department must make two determinations—whether the school is controlled by a religious organization and whether Title IX would conflict with the religious tenets of the controlling organization.... The Department has ... “never rejected an educational institution’s assertion that it is controlled by a religious organization” and “never denied a religious exemption when a religious educational institution asserts a religious objection.” ...
The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion....
