SAN FRANCISCO (CN) — A Ninth Circuit judge grilled lawyers over whether a theological seminary applied its sexual standards policy differently to homosexuals and heterosexuals at a hearing Thursday over claims that it expelled two students in same-sex relationships in violation of a federal nondiscrimination law.
Nathan Brittsan and Joanna Maxon were both kicked out of their graduate programs at Fuller Theological Seminary, a religious school in Pasadena, for engaging in “homosexual forms of explicit sexual conduct” after administrators discovered they were each married to someone of the same sex.
Brittsan received his dismissal letter in 2017 just two days after starting his first classes, while 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 that 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 2020, concluding Fuller had not violated Title IX — a statute that bars schools that receive federal funding from discriminating against students on the basis of sex — since its sexual standards policy falls under the law’s “religious tenets” exemption.
U.S. Circuit Judge Michelle Friedland zeroed in on that policy at a hearing on Maxon’s appeal, and whether it was being unevenly enforced.
“They’re saying you have a single sexual conduct policy and a lot of people are violating it and the only ones who get kicked out are the same-sex couples who are violating it. If the disparate treatment alleged is disparate enforcement of this policy, do you have a religious tenet somewhere that says that some of these violations are more serious than others, that would explain the disparate treatment?”
Daniel Blomberg, an attorney representing the seminary, said the students were expelled not just because they had violated the sexual standards but because they were in permanent relationships. “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,” he said.
Friedland posed a hypothetical scenario where Stanford University only expelled female students for violating an anti-plagiarism policy. “They still have a valid belief against plagiarizing, but if they’re enforcing it unfairly between men and women they might have a Title IX claim, would you agree? The women who were kicked out and not the men?” the Barack Obama appointee asked.
“Maybe in that case, but not here where the statute doesn’t apply,” Blomberg said, since Fuller is a religious school.
But Friedland said she wondered whether the policy counts as a religious tenet that would get Fuller out of Title IX.
“I’m trying to find a religious tenet that says same-sex marriage violation of the sexual conduct policy is somehow different from a premarital sex violation. If you had a tenet that said that, it then would line up with what happened here,” she said. “But they’re alleging there’s not equal treatment between students and I’m trying to figure out if there's a religious tenet that supports that.”
Blomberg said neither the government nor a civil plaintiff should be able to use the court to probe Fuller’s religious tenets, a view U.S. District Judge Consuelo Marshal, who dismissed the case, appeared to share. “The court is not permitted to scrutinize the interpretation FTS gives to its religious beliefs,” the judge wrote, referring to the seminary by an acronym.
“Fuller has been very clear about what it expects and how it expects religious individuals to comport themselves while receiving ministerial training at the school. Going into this kind of second guessing, your honor, going behind Fuller’s sincere articulation of its reasons for its action, would raise a number of severe constitutional problems,” Blomberg said. “The sincerity of Fuller's religious belief here is unquestioned.”
The court took the case under submission. Senior U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, and U.S. Circuit Judge Paul Watford, also appointed by Obama, rounded out the panel.
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