The Biden administration’s Department of Justice has issued a series of controversial intentions in recent weeks of cases it will defend in court. All of these cases support actions of the previous administration that are, at the very least, at odds with the politics of the current administration.
These decisions have some Democrats, advocates and activists for various causes calling into question Attorney General Merrick Garland’s strict adherence to previous administrations’ legal takes rather than setting his own precedents or simply declining to respond. That latter option was a tack taken by the Obama administration with regard to several issues, most notably defending the Defense of Marriage Act (DOMA), which President Obama ceased to defend.
There are major points in which Garland has chosen to defend particularly troublesome Trump-era policies highlighted by former Attorney General Bill Barr.
Critics argue Garland is in lock-step with previous decisions and is leery of stepping outside that pattern. Garland has been outspoken in support for voting rights and pursuing investigations into police misconduct and civil rights abuses. But the AG has also chosen to support Barr’s efforts to expand the president’s legal immunities and restrict immigrants’ ability to enter the country legally via asylum. That last impacts largely on women claiming domestic violence and LGBT+ people claiming violent discrimination.
Garland’s latest decision, to “vigorously defend” a religious exemption from federal civil rights law that allows federally funded religious schools to discriminate against LGBTQ students, had civil rights activists outraged.
The filing relates to a pending lawsuit in which dozens of LGBT students assert conservative religious universities and colleges have engaged in discrimination and active harm against them.
The case involves 40 LGBTQ students suing the Department of Education in a class-action lawsuit filed March 30. The students allege that they faced discrimination at 25 federally funded Christian colleges and universities in 18 states. Students argue that discrimination also includes active harm, such as conversion therapy.
The Religious Exemption Accountability Project, an organization that advocates for LGBTQ students at taxpayer-funded religious colleges and universities, filed the lawsuit, Hunter v. U.S. Department of Education, in the U.S. District Court in Oregon on behalf of former and current students.
“The Plaintiffs seek safety and justice for themselves and for the countless sexual and gender minority students whose oppression, fueled by government funding, and unrestrained by government intervention, persists with injurious consequences to mind, body and soul,” the suit states.
“The Department’s inaction leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.”
As reported at the original filing, the Biden administration’s spokesperson at the Department of Education said that the administration is “fully committed to equal education access for all students.” In keeping with an earlier executive order Biden signed regarding education, President Biden stated, “It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”
Paul Carlos Southwick, director of REAP, filed the case for the students. Southwick told media, “What this means is that the government is now aligning itself with anti-LGBTQ hate in order to vigorously defend an exemption that everyone knows causes severe harm to LGBTQ students using taxpayer money.”
He explained, “It will make our case harder if the federal government plans to vigorously defend it like they have indicated.”
Because Title IX, the federal civil rights law regarding education, exempts religion, the Biden administration argued that it had to defend against the Oregon lawsuit. The DOJ claims the rationale behind their filing was anticipatory — and meant as an end run around conservative religious groups, meant to block them from becoming parties to the lawsuit. If the DOJ defends the exemption, it argued, then it can prevent the case from becoming a cause célèbre among right-wing groups.
LGBTQ advocates disagreed. Outrage over Garland’s action was swift and resulted in some moderation from the DOJ. A week after the filing, the DOJ amended the document, taking out the word “vigorously.” Also removed was nomenclature asserting that the Department of Education and the religious schools in the lawsuit “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”
In its initial and updated filings the DOJ wrote, “To be sure, the Department of Education is conducting a comprehensive review of its regulations implementing Title IX pursuant to Executive Order 14,021, which sets forth the current administration’s policy on guaranteeing an educational environment free from discrimination on the basis of sex.”
The updated version is amended to add, “But until that process is complete, it would be premature to conclude that the government is an inadequate representative.”
The Council of Christian Colleges and Universities filed a motion in May stating that the Biden administration’s policies suggest that it “may be openly hostile” to the religious beliefs of the schools named in the suit.
Jennifer Pizer, law and policy director at Lambda Legal, said in a statement, “What you see between the two legal briefs by the Department of Justice is that words matter, and the government can be expected to do its duty properly and adequately to present to the court the appropriate legal arguments to defend a duly enacted statute.”
Pizer said, “And at the same time, we can expect the government to be mindful of the tension between the two interests that are being advanced here: the rights of the students and the freedom of the institution to act according to its policies.”
Lambda Legal has not issued a position on the filing.
But REAP’s Southwick said in a statement that while the updated filing alters the “extreme language” of the initial filing, the language still asserts that the DOJ “remains committed to defending a religious exemption that allows taxpayer-funded colleges to abuse LGBTQ+ students.”
Southwick also noted that President Biden had tweeted that the Senate “must pass the Equality Act” on the same day the DOJ amended their filing. “These positions are in conflict,” Southwick said.
A decision in the U.S. Supreme Court case of Fulton v. City of Philadelphia is awaited before the end of June. How the new Trump-heavy SCOTUS rules on that case could impact this case and other future cases relative to religious exemptions to LGBTQ civil rights.