09/26/2011 06:58 pm ET Updated Dec 06, 2017

Catholic University Same-Sex Dorms: Antonin Scalia Expresses Support Against John Banzhaf Lawsuit

WASHINGTON -- John Banzhaf -- a local lawyer, George Washington University law professor and overall gadfly -- was a little surprised when over the weekend, U.S. Supreme Court Associate Justice Antonin Scalia seemingly came out in favor of Catholic University of America's controversial same-sex dorm policy, encouraging CUA and other Catholic institutions to stand up to "politically correct" forces that would undermine the school's religious identities and practices.

Banzhaf was surprised because as far as he'd realized, the return to same-sex dorms -- announced by CUA's president John Garvey in the Wall Street Journal in June -- had nothing to do with religion. Instead, in describing the school's reasons for moving to single-sex housing, Garvey invoked his ideal of an Aristotelian sense of virtue, mixed with a desire to stop students from binge drinking and having casual sex.

"He cited only secular reasons," Banzhaf told The Huffington Post in an interview on Monday. "Same reasons that a non-Catholic university might have: To reduce drinking and hookups and so on. He did not suggest that there is any religious basis for it. It is very clear from Garvey's own statements that it is totally secular."

The secular justifications were enough. In July, Banzhaf filed a complaint with D.C.'s Office of Human Rights charging that CUA's return to same-sex dorms violates the District of Columbia's Human Rights Act. The act, Banzhaf argued in his complaint, prohibits any kind of discrimination, like not allowing members of one sex access to a particular campus building, "and is not limited to situations in which one group is necessarily harmed or treated less favorably than another group." Any kind of "separate but equal" treatment would be a problem under the act, unless there were a legitimate business reason for the disparate treatment. And, said Banzhaf, in this case there is no legitimate business reason.

"Someone could say, 'Well, the Jews and the Muslims are constantly fighting, so we're going to put them in separate dorms," he said. "Well, you can't do that."

Because of a confidentiality agreement, Banzhaf can't exactly say what happened during the ensuing mediation, which ended in mid-September. But "before I went into the mediation, I publicly announced that if it was not successful, that I would be filing additional complaints against the Archbishop of Washington, and another archbishop who is the chairman of the board of Catholic University. What I can tell you is I will be filing the additional complaints against the two archbishops. Those should be in the next two, three weeks."

Banzhaf has also reserved the right to bring a parallel action -- "probably a class action," he said -- to the courts. "In fact I just put a notice in the newspaper, the Tower, asking for additional volunteers to come forward and be plaintiffs in that lawsuit. That was published on Friday." Banzhaf said he "can't disclose" if any students have gotten in touch with him yet about participating in the suit.

WATCH: Will Catholic University Be Sued Over Same-Sex Dorms?