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Bigotry is Bigotry: Fulton v. Philadelphia

The Free Exercise Thereof

By Aidan R. Scully, Contributing Opinion Writer
Aidan R. Scully ’25 is a Classics and Religion concentrator in Adams House. His column “The Free Exercise Thereof” appears on alternate Tuesdays.

Around 100,000 LGBTQ+ students currently attend private colleges in the United States that have received a religious exemption from Title IX. By petitioning the Department of Education, colleges may receive these religious exemptions, exemptions that allow these institutions to reject, deny resources to, or expel students for their sexuality or gender identity, all while continuing to receive federal funding.

But the battle over these religious exemptions started several decades before courts started defining sexual orientation and gender identity as protected classes in the 2010s. It started when Bob Jones University had its federal funding withheld due to a different policy monitoring its students’ romantic lives — a policy that university President Bob Jones III had apparently ended just hours before being asked to defend it on Larry King Live in 2000.

“We stand against the one-world government, against the coming world of anti-Christ, which is a one-world system of blending of all differences,” said Jones, defending his university’s right to ban interracial dating. “The Bible is very clear about this.”

“There is a religious freedom issue,” he added. “That’s all we ever fought for.”

This supposed Biblical clarity was the grounding for the policy in 1970 as well, when the IRS stripped BJU of its tax-exempt status over the ban. In response, outrage from the religious right coalesced into political groups such as the Moral Majority, whose platforms have come to define the American religious right.

The Supreme Court upheld the IRS’s decision in 1983 in Bob Jones University v. United States. But tasked with evaluating discrimination based on sexuality a few decades later, they had seemingly changed their tune.

It is against this backdrop that we find ourselves today. In 2018, the City of Philadelphia was contracting with several outside groups to place children in foster homes. Upon learning that two groups, including Catholic Social Services, had been violating nondiscrimination laws by refusing to place children with same-sex couples, the city ended their contract. Claiming their religious freedom had been violated, Catholic Social Services sued.

In 2021, the Supreme Court ruled unanimously against the city in Fulton v. Philadelphia. Under this decision, discrimination against same-sex couples was no longer a disqualifier in receiving federal funds, and discriminatory institutions were now constitutionally protected against being held to the letter of the law.

The Fulton decision was painful for many, especially for queer people like myself, but it was hardly unexpected. The decision fell right in line with the court’s 2018 ruling in Masterpiece Cakeshop v. Colorado, which said that a business owner had the constitutional right under the Free Exercise Clause to deny service to a gay customer exclusively because of their sexuality. Increasingly, it seems, the Supreme Court values the right to discriminate more highly than the right not to be discriminated against.

And for religious colleges, exemptions have been baked into Title IX since its conception in 1972. The statute, which banned discrimination based on sex, would later be interpreted to include gender identity and sexuality, preserving the religious exemption in both of those cases. During the years immediately before and after the Supreme Court’s decision to legalize gay marriage in Obergefell v. Hodges, the number of colleges applying for these exemptions skyrocketed. Now the number of colleges with these exemptions stands at over 200, including fundamentalist colleges of all denominations, such as Bob Jones University.

Title IX is not the only federal statute to have its power stunted by the religious right. First codified by McClure v. Salvation Army, religious groups are also exempt from Title VII, a clause which forbids discrimination in hiring on the grounds of race, religion, gender, and other protected classes. In 2012, the Supreme Court held that this exception allowed a church school to fire Cheryl Perich when she was diagnosed with narcolepsy. In 2021, the Seventh Circuit Court held that churches were also immune from workplace harassment claims after Sandor Demkovich was harassed, and ultimately fired, for his sexuality.

In their efforts to make America an exclusively Christian country, Christian Nationalists consistently argue that these broad exemptions are simply protections of their religious freedom to practice Christianity as they see fit. But as decades of legal precedent has shown, the inevitable consequence of both their actions and their ideology is to prioritize traditionally privileged groups, returning to straight, white, able-bodied, Christian men the oppressive powers rightfully stripped from them by civil rights laws. Freedom to them means the power to deprive the marginalized of their freedoms. And thanks to these cases, that power is growing every year.

These cases should challenge us to ask a foundational question of ourselves: if we believe that discrimination is bad, why we would allow it in any circumstance? In most cases, explicit discrimination against someone for their gender, sexuality, race, religion, or ability is rightfully outlawed. But religious institutions have been given significant latitude to discriminate explicitly, legally allowed to flout nondiscrimination laws while being constitutionally protected against being deprived of public funds.

Great acts and decisions that have driven our country forward have never been without controversy. Laws that protected civil rights, legal precedents that banned discrimination, and public statements that shifted the course of American history were undeniably acts of great political courage precisely because they were often unpopular with large swaths of the country. To say that we condemn bigotry in some cases, but not all, is an act of political cowardice.

It is people of color, LGBTQ+ people, disabled people, and women who suffer whenever these exemptions are invoked, and these groups will continue to suffer unless the laws designed to protect them are allowed to fulfill their full purpose. Bigotry is bigotry, and if we do not fight it wherever we see it, we are not fighting it at all.

Aidan R. Scully ’25 is a Classics and Religion concentrator in Adams House. His column “The Free Exercise Thereof” appears on alternate Tuesdays.

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