The Biden Administration’s Latest Assault on Religious Freedom Cannot Stand

The government can’t force schools to open women’s dormitories, bedrooms, and showers to men. That is why College of the Ozarks, a private religious college in southern Missouri represented by Alliance Defending Freedom, recently asked the U.S. Supreme Court to uphold that commonsense and constitutionally protected freedom.

The college — like many private, faith-based colleges and universities — maintains policies in adherence with its religious views on issues of sex and sexuality. One of these policies related to housing requires men and women to live in separate dormitories. This policy places the small college at odds with the full force of the federal government, which seems hell-bent on redefining the word “sex” from its original meaning of biologically distinct male and female to include sexual orientation and gender identity.

In 2020, the U.S. Supreme Court ruled in the case of Bostock v. Clayton County that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act’s prohibition on employment discrimination based on sex. The majority opinion ignored the clear intent of Congress at the time of Title VII’s passage, opting instead for an all-too-clever semantic argument — one that results in cutting off one’s “textualist” nose to spite one’s face. Despite the majority opinion’s unambiguous language limiting the decision to Title VII, one did not need an intellect like Clarence Darrow’s to predict the ramifications.

On his first day in office, President Joe Biden signed an executive order requiring bureaucrats in every executive-branch agency to rewrite all other laws pertaining to biological sex to conform with the Orwellian “newspeak” — meaning sexual orientation and gender identity. Within three weeks, the U.S. Department of Housing and Urban Development issued a directive that the Fair Housing Act would be “fully enforced” to ban gender-identity discrimination — necessarily including college dormitories. The unelected, unaccountable civil servants did so without seeking comment from the public they claim to serve.

More than a procedural technicality, this requirement for public comment is essential if our republic is to maintain some semblance of constitutional order when the executive branch veers into lawmaking with delegated authority from the legislative branch. Yet, even procedural acuity provides no constitutional fig leaf for actions that violate the First Amendment’s protection of religious liberty.

The HUD directive requires College of the Ozarks to reverse its housing policies for 1,300 students. Unless the directive is enjoined, it allows the government to force the college to stop talking about its policies, preventing it from being true to its religious beliefs. Were the college to comply, it would jeopardize its ability to function, cause emotional harm to students who rely on the housing policies to protect women from men in their living spaces or showers (and vice versa), and dissuade Christian students from attending the college.

Placed in the untenable position of choosing between obeying the government and abandoning its religious beliefs, refusing the government mandate and incurring crippling investigations and penalties, or ceasing to provide student housing, College of the Ozarks sought pre-enforcement relief from the courts.

Shockingly, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled 2-1 that the college must wait for the wing-tipped apparatchiks to haul them into proceedings, risking fines and other penalties which could shut any college down before it could challenge the mandate. But pre-enforcement challenges are a hallmark of civil-rights litigation. One should not be forced to suffer the consequences of violating an unjust law to seek relief from that unjust law. As the dissenting judge put it, “Regulated entities are placed under a sword of Damocles but are denied access to the courts because the sword has not yet fallen.”

Every private university in the nation will be watching to see if that sword will be allowed to fall. The Supreme Court should take up College of the Ozarks v. Biden to halt the government’s inappropriate order; to reaffirm the primacy of religious freedom under the First Amendment; and to protect the privacy, dignity, and safety of female students.