Will Biden regulate religious colleges out of existence? This Ozarks case warns of it

Do Christian colleges and universities still have a right to act on their faith? Would they even truly exist if they can’t?

A landmark lawsuit out of the Ozarks may decide that — and, oh by the way, may answer the suddenly muddled question as to what is a man and what is a woman.

The College of the Ozarks near Branson, Missouri speaks for many such religious institutions in suing the Biden administration following a Feb. 11 memo from the Department of Housing and Urban Development that — in a landmark ruling of its own — declares it illegal to take gender identity into consideration in housing.

While the directive is both well-intentioned and eminently defensible in the secular world, officials at the Christian college believe it directly conflicts with their faith-based policy of separate dorm buildings for women and men.

Forcing the college to ditch its doctrine, it says, is essentially regulating it out of existence.

“It’s the government telling these institutions ‘you must house biological males in female dorm rooms,’” says Ryan Bangert, senior counsel at the Alliance Defending Freedom, which is representing the college in the case. “That coercion, that demand, violates these institutions’ deeply held religious beliefs. It would force these institutions to fundamentally alter their character and their nature. “They would cease to exist as the types of religious institutions that they’re committed to being.”

The College of the Ozarks didn’t start this. The HUD memo explicitly instructed federal housing officials “to notify persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional for filing.” Basically saying the lawsuit line starts here.

And, indeed, in late March a lawsuit was filed in Oregon by nearly three dozen plaintiffs alleging housing discrimination by some two dozen Christian colleges.

Such faith-based institutions are eyeing that case warily, as well as the Ozarks one.

“We’ve spoken with many of them. They’re aware of it, they’re watching it with great concern,” Bangert says.

I don’t envy the courts having to referee what is a historic tussle over conflicting fundamental rights. As a huge fan of individual liberty, I believe in the freedom to be oneself. And I feel everyone in God’s creation deserves love and respect. But while the College of the Ozarks agrees with that — starting, Bangert says, “with the premise that everyone is created in the image of God, and everyone is of infinite value, infinite worth” — religious people have rights, too. And so do students and parents who disagree with mixing genders in campus housing.

The Ozarks lawsuit claims violations of the college’s religious liberty and even freedom of speech, since under the HUD memo the college is required to mold its stated housing policies to the government’s liking. The lawsuit also alleges the Biden administration issued the policy without the requisite official notice and public comment period. It certainly didn’t incorporate the faith community’s input.

This is not about gender identity or sexual orientation, Bangert says, noting that the student handbook includes codes of conduct concerning sexual activity for all students: “The college holds certain traditional Christian beliefs concerning conduct and behavior. They have a constitutional right to hold those beliefs, and to put those beliefs into practice on their campus.”

Relax, the U.S. Department of Justice says in its response to the Ozarks lawsuit. The HUD memo doesn’t have the force of law and religious institutions have nothing to worry about. Hmm. I seem to recall the Little Sisters of the Poor had to rely on a friendly Trump administration and even the U.S. Supreme Court to avoid being forced by the feds to hand out contraceptives under Obamacare. Relax? I don’t think so.

A hearing on the college’s request for a temporary restraining order and preliminary injunction against the feds is set for May 19.

What’s at stake? At the very least, possible six-figure fines for repeat violations of the government’s directive. Then there are the possible lawsuits against the religious institutions, such as that in the Oregon case, complete with possible monetary damages and attorneys’ fees.

More ominously still, the religious institutions could have their religiosity regulated right out of them — in the case of the College of the Ozarks, its quaint but core precept of separating the sexes in housing.

I have no idea how the courts will shake this out. It’s the collision of an unstoppable movement and an immovable object.

But at some point, it’s not enough just to self-identify as a Christian school. You have to be free to be one.