SAN FRANCISCO (CN) — A Ninth Circuit panel on Monday upheld the dismissal of a lawsuit challenging a Southern California seminary’s expulsion of two students for being in same-sex marriages, finding their removal was allowed under a religious exemption in a federal nondiscrimination law.
“To the extent that plaintiffs were dismissed because their marriages were with spouses of the same sex, rather than the opposite sex, plaintiffs’ claim fails because the religious exemption applies to shield these religiously motivated decisions that would otherwise violate Title IX’s prohibition on sex discrimination,” the three-judge panel wrote in an 8-page unpublished opinion.
Nathan Brittsan and Joanna Maxon were kicked out of graduate programs at Fuller Theological Seminary, a religious school in Pasadena, for engaging in “homosexual forms of explicit sexual conduct” after administrators discovered both are married to someone of the same sex.
Brittsan received his dismissal letter in 2017, two days after starting his first classes. Maxon was just shy of completing her online degree when she was dismissed in 2018 after the school noticed she listed Tonya Minton as her spouse on a joint tax return.
By marrying people of the same sex, Fuller determined Brittsan and Maxon had violated its sexual standards policy that bars premarital sex and "homosexual forms of explicit sexual conduct.”
A federal judge tossed their lawsuit against the seminary in October 2020, finding Fuller had not violated Title IX — a statute that bars discrimination at schools that receive federal funding — because its sexual standards policy falls under the law’s “religious tenets” exemption.
During oral arguments last month, U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, questioned if the school was applying its policy evenly for heterosexual and homosexual students given accusations of more lax enforcement against heterosexual students who engage in premarital sex.
The seminary’s attorney, Daniel Blomberg of the Becket Fund for Religious Liberty in Washington, responded that the students were not expelled just because they violated the policy but also because they were in permanent relationships, which would entail a constant and ongoing violation of the policy.
“It wouldn't be appropriate to ask these individuals to dissolve their unions and so they were going to be in permanent violation of community standard,” Blomberg said.
In the opinion issued Monday, the panel refused to wade into the question of whether the school’s disparate enforcement of its policy fell outside the religious tenets exemption because the expelled students offered no facts to support that claim.
“Plaintiffs have advanced nothing more than conclusory assertions that Fuller engages in this sort of differential treatment, and they have conceded that they cannot currently advance any more-specific allegations even if given leave to amend,” the panel wrote in a footnote to the ruling.
The panel also rejected a claim that the school was required to notify the U.S. Department of Education in writing that it was claiming a religious exemption. A regulation enacted in May 2020 requires such notice, but the panel found that rule conflicts with the “clear language” of the law and longstanding practice at the Department of Education.
“The language of Title IX does not condition an institution’s ability to claim the religious exemption on filing written notice or on any other process—the exemption is mandatory and automatic,” the panel wrote.
Senior U.S. Circuit Judge Richard Paez, a Bill Clinton appointee and Obama appointee U.S. Circuit Judge Paul Watford joined Friedland the panel.
Attorneys for the expelled students and school did not immediately return emails requesting comment Monday.
Brittsan and Maxon, are represented by Arleen Fernandez of Davis Wright Tremaine and Paul Southwick, a private attorney based in Portland, Oregon.
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