In March, 33 current and former students at federally-funded Christian colleges and universities filed a class-action lawsuit against the Department of Education, claiming that the religious exemption to Title IX violates the First, Fifth, and Fourteenth Amendments to the Constitution by allowing Christian institutions to allegedly “discriminate” against “sexual and gender minorities.” Christian colleges have sought to defend their rights in court, but the Department of Justice under President Joe Biden moved to block them.
The lawsuit, Hunter et al. v. Department of Education, appears to be a fait accompli. Since Biden has signaled his hostility to religious freedom protections like the religious exemption in Title IX, the Biden administration seems unlikely to give the colleges the robust defense they deserve.
Yet on Tuesday, the Department of Justice (DOJ) under Biden filed a motion to prevent three Christian colleges and the Council for Christian Colleges and Universities (CCCU) from intervening in the case. The DOJ claimed that it could “vigorously defend” the religious exemption, so the court should not allow the Christian institutions to speak up for themselves.
Yet on Wednesday, the DOJ appeared to give an indication that this legal filing was all smoke and mirrors. As The Washington Examiner reported, the DOJ amended its filing, omitting the language about “vigorously” defending the exemption.
The Tuesday document included this sentence: “Neither the Administration’s stated policy positions nor the Department’s review of existing regulations abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter.” Yet the filing on Wednesday dropped that key statement.
Paul Southwick, leader of the Religious Exemption Accountability Project (REAP), the organization behind the lawsuit, told the Examiner that “it remains to be seen” whether the new DOJ filing is merely “semantics or a substantive shift” in policy.
“They’ve backtracked a little, but it’s more that they backtrack in the language they use,” Southwick said. “Instead of ‘vigorously’ defending, they are now saying that they will ‘adequately’ defend the constitutionality of the statute. … The administration shouldn’t be defending the religious exemption at all. It’s unconstitutional.”
Southwick had condemned the first filing, as well. “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 said at the time.
Indeed, Biden has bent over backward to appease the LGBT activists, from nominating the first openly transgender official to pushing changes to federal law, including the Orwellian Equality Act, which explicitly guts the Religious Freedom Restoration Act of 1993.
It seems the Biden DOJ is winking and nodding at REAP, telling the court that it will defend the religious exemption while preparing to yield key arguments to the LGBT activists when the actual case begins. The DOJ’s rush to revise the filing after LGBT activists condemned the original version only underscores the colleges’ concerns.
“This lawsuit wants the federal government to tell Christian schools, ‘To continue accepting students who have federal financial aid, all you have to do is to start acting contrary to your own beliefs.’ That’s neither reasonable nor constitutional,” David Cortman, senior counsel and vice president of U.S. litigation at Alliance Defending Freedom (ADF), the Christian law firm representing the colleges, said in a statement.
“No court should grant a radical request to rewrite federal law and strong-arm religious colleges by stripping their students of much-needed financial aid,” Cortman added. “For that reason, we are asking the court to let our clients intervene in this lawsuit so that they and their students can defend their freedoms under federal law and the Constitution.”
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No school that would stand to lose federal funding is yet a party in the case, and it seems the Biden administration wants it that way. Yet even the first filing appears to have lost its vigor. The court must allow the schools to intervene.