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19 AGs back Missouri college's religious liberty case against Biden administration

College of the Ozarks sued the Biden administration after an executive order banned housing discrimination based on sexual orientation and gender identity.

Published: March 29, 2023 6:57am

(The Center Square) -

The U.S. Supreme Court hasn’t agreed to hear a case involving a private Missouri college’s challenge to a Biden administration ruling, but Missouri Attorney General Andrew Bailey and 18 other attorneys general filed a brief supporting the school.

College of the Ozarks sued the Biden administration in 2021 after an executive order banned housing discrimination based on sexual orientation and gender identity.

The institution and the Alliance Defending Freedom filed suit on the grounds the order forced religious schools to violate their views by prohibiting same-sex dormitories, including rules allowing a transgender person who identifies as female to live in a female residence hall.

Bailey’s brief urges the court to take the case and contends the U.S. Department of Housing and Urban Development unlawfully declared the Fair Housing Act prohibits schools from having dormitories limited to a single biological sex.

Bailey said he opposes the federal government’s ability to push rules “that run roughshod over religious liberty.”

“It is absolutely ridiculous that unelected federal bureaucrats are attempting to subvert the law and force religious universities to house male and female students together,” Bailey said in a statement. “This is just yet another attempt by woke leftists to push their social agenda onto students.”

In May 2021, a federal judge rejected the college’s lawsuit and last year the U.S. Court of Appeals upheld the Biden administration’s order. In an 18-page ruling, the judges stated the college’s “alleged injury” was too speculative.

“The College has not shown that there exists a credible threat that the defendants will enforce the Fair Housing Act against the institution based on its religiously-based housing policies,” the judges wrote. “The Memorandum does not make the College’s housing policies unlawful without regard to legal protections for religious liberty. HUD has never filed charges of housing discrimination against a college that is exempt from prohibitions on sex discrimination in housing under Title IX. And HUD has never enforced the Fair Housing Act’s sex-discrimination prohibition against the College, even though the agency interpreted the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity between 2012 and 2020.”

John Bursch, senior counsel and vice president of appellate advocacy with the ADF, said he expects the Supreme Court to make a decision on accepting the case in June.

“Any time you have about 20 state attorneys general filing a brief, I would say that’s pretty significant,” Bursch said in an interview with The Center Square.

Bailey’s 26-page brief states the federal directive evades judicial review and imposes a new liability for gender identity and sexual orientation discrimination without evaluating the burden on religious freedoms.

“The College’s pre-enforcement suit raises serious challenges to expansive and careless executive action that tramples religious liberties,” the brief states. “The courts have failed to recognize that HUD’s Directive is a legislative rule.”

Joining Missouri are Alaska, Alabama, Arkansas, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, South Carolina, Tennessee, Texas, Utah, Virginia, and West Virginia.

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