The Bidenistas came into power full of ideological swagger, eager to expand federal power in all directions. Among their moves was a directive by the Department of Housing and Urban Development (two areas of life where the federal government has no constitutional business) that under the Fair Housing Act, the illegality of discrimination against buyers or renters based on “sex” now includes “sexual orientation.” That means trouble with a capital T from Washington if you’re an institution that wants to maintain traditional distinctions in housing between biological males and biological females.
One such institution is College of the Ozarks, which has always sought to preserve Christian values on campus. But its housing policy is certain to attract notice from aggressive federal officials, many of whom would take delight in forcing a school to choose between its religious convictions and costly battles with the federal government.
In an effort at heading off the application of the directive to it, the college is suing in federal district court to block its enforcement. In today’s Martin Center article, I write about the case.
College of the Ozarks is represented by Alliance Defending Freedom (ADF), which has successfully fought against many governmental incursions against the liberties of schools that don’t care to operate as vassals of the government. ADF’s complaint offers a number of strong reasons for the court to enjoin the feds from applying HUD’s directive.
One is that the feds rushed this through without bothering with the Administrative Procedure Act, which requires federal agencies to give notice of proposed rule changes and allow public comment on them. That would be enough to enjoin enforcement. The court might also decide that the change in meaning from “sex” to “gender orientation” is one that only Congress can legislate, not something an agency can decree.
There are also First Amendment problems — freedom of religion and freedom of speech. Both justify setting this federal bludgeon aside.
Finally, ADF argues that under the Tenth Amendment, the feds have no authority to tell colleges how they must operate. The Tenth Amendment was included in the Bill of Rights to protect federalism — to keep the domain of the federal government within its written sphere and reserve everything else to the states or the people. Does Washington have the power to tell every college in the country how it must operate? The Tenth Amendment says no. I think it unlikely that a federal district court would rely on it to strike down egregious federal overreach like this, but I’m glad ADF made the argument.
The case is set for argument on May 19, I understand.