The Biden Justice Department on Wednesday afternoon updated its court filing in a case where it is defending the right of religious schools to discriminate against LGBTQ students after a backlash from critics and a statement from plaintiffs in the case saying they felt “betrayed.”
Attorneys from the Justice Department amended their filing to stress that, while they will defend the law in court, the policy surrounding the federal law is being reviewed by the Department of Education.
The federal law at issue, part of Title IX of the Education Amendments of 1972, prohibits discrimination on the basis of sex in federally assisted education programs, but allows for a religious exemption for organizations with religious objections.
The filing came in a federal lawsuit in Oregon from students at religious schools who are suing the government for providing funding to schools with discriminatory policies. Tuesday, DOJ had said that it will continue to defend it.
In the amended filing, government attorneys wrote: “The Department of Education is conducting a comprehensive review of its regulations implementing [the law], which sets forth the current administration’s policy on guaranteeing an educational environment free from discrimination on the basis of sex.”
The filing added, “But until that process is complete, it would be premature to conclude that the government is an inadequate representative.”
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Attorneys at the Justice Department are arguing against intervention in the case from three religious schools – Western Baptist University, William Jessup University, and Phoenix Seminary – saying the administration shares the “same ultimate objective” as those religious institutions.
Tuesday’s initial filing seemed to conflict with the Biden administration’s March memo from the DOJ’s Civil Rights Division pledging that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” but it also aligned with the DOJ’s duty to defend federal laws.
The Justice Department did not comment on why it made the change. But this is the latest example of the Justice Department’s positions in court having come under question from critics on the left expecting or anticipating different policies under Biden.
Earlier this week, the DOJ argued that it should be allowed to substitute itself for former President Donald Trump in the defamation lawsuit filed by magazine columnist E. Jean Carroll. The Justice Department argued that since Trump was an employee of the government when the allegedly defamatory comment was made, the DOJ, rather than Trump personally, should serve as the defendant in the case. In late May, the DOJ argued to continue to keep portions of a 2019 memo from former Attorney General William Barr into whether Trump obstructed the Russia investigation from the public.
Attorney General Merrick Garland was questioned in a Senate hearing Wednesday about the department’s positions in court. Garland explained that “the job of the Justice Department in making decisions of law is not to back any administration, previous or present.”
“It is not always easy to apply that rule,” Garland continued. “Sometimes it means that we have to make a decision about the law that we would never have made, and that we strongly disagree with as a matter of policy. But in every case the job of the Justice Department is to make the best judgment it can as to what the law requires.”
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After the initial filing Tuesday, the group representing the plaintiffs in the case said they felt abandoned.
“My clients feel betrayed by an administration the promised to protect LGBTQ+ students,” Paul Carlos Southwick, director of the Religious Exemption Accountability Project, said. “The Biden administration did not need to defend this unconstitutional religious exemption, and they certainly did not need to say that it ‘shares the same ultimate objective’ as anti-LGBTQ extremist group Alliance Defending Freedom.”