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Biden DOJ to “Vigorously Defend” LGBTQ Discrimination at Private Schools

The filing added to growing Democratic criticism of Attorney General Merrick Garland.

Attorney General Merrick Garland testifies before a hearing of the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies on June 9, 2021, in Washington, D.C.

The Justice Department said in a court filing Wednesday that it plans to “vigorously” defend an exemption allowing religious schools to discriminate against LGBTQ students, a surprise announcement with phrasing that worried activists who saw it as promising action even beyond what the law currently requires.

It was the latest development in a First-Amendment lawsuit, Hunter v. Department of Education, in which 40 students at religious universities sued the government for providing funding to schools with discriminatory policies. The DOJ filing came in response to a motion from the Council for Christian Colleges and Universities (CCCU), a group of religious schools whose members were named in the suit, which argued that the Biden Administration “may be openly hostile” to the group’s beliefs and therefore not trustworthy enough to litigate the case.

In response, the DOJ said in a 12-page court filing that it will “vigorously” defend the religious exemption in federal civil rights law that allows religious schools that receive federal funding to discriminate against LGBTQ students, arguing that it “shares the same ultimate objective” as the Christian schools named in the case — “namely, to uphold the Religious Exemption as it is currently applied.”

CCCU President Shirley Hoogstra told The Washington Post, which first reported the news, that the organization was “pleased they want to defend religious exemption.”

But the motion shocked LGBTQ advocates who suggested that the filing “went further than just an obligation to defend an existing law,” according to the report.

“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,” Paul Carlos Southwick, director of the Religious Exemption Accountability Project, which filed the lawsuit, told the Post. “It will make our case harder if the federal government plans to vigorously defend it like they have indicated.”

The schools in the lawsuit argue they have a First Amendment right to promote religious views about sexuality, while the lawsuit argues the federally-backed discrimination is unconstitutional.

“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 lawsuit, which was filed in Oregon federal court, reads. “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.”

The religious exemption is part of Title IX, which bans sex-based discrimination at schools that receive federal funding. The Education Department is conducting a review of Title IX regulations but the DOJ said in its filing that “at this stage of the litigation, it is premature to conclude that the federal defendants would neglect to raise, or be ‘ill-equipped’ to develop, effective arguments in support of the religious exemption.”

The filing added to growing Democratic criticism of Attorney General Merrick Garland after the DOJ surprised many by backing former President Donald Trump and former Attorney General Bill Barr in multiple cases.

“Merrick Garland has so far been absolutely horrible,” wrote Ryan Cooper, a columnist at The Week.

During the presidential campaign, President Joe Biden slammed Trump for using the DOJ as his “own law firm.” But the DOJ on Monday filed a brief seeking to represent Trump in a defamation lawsuit filed by rape accuser E. Jean Carroll, arguing that he could not be sued for defamation because he made the comments in question as part of his official duties as president.

“Then-President Trump’s response to Ms. Carroll’s serious allegations of sexual assault included statements that questioned her credibility in terms that were crude and disrespectful,” the filing said, calling Trump’s actions “unnecessary and inappropriate” but arguing that he is immune from legal action under the Westfall Act, which shields federal employees.

The White House quickly sought to distance itself from the DOJ’s effort, saying in a statement that it “was not consulted by D.O.J. on the decision to file this brief or its contents.”

“President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements,” said White House spokesman Andrew Bates.

Carroll’s lawyer Roberta Kaplan told The New York Times it was “truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it.”

The DOJ previously appealed the full release of a controversial department memo discussing why Trump should not have been charged with obstruction of justice in former special counsel Bob Mueller’s Russia investigation, which found strong evidence that Trump tried to impede the probe. The release was ordered by Judge Amy Berman Jackson, who excoriated the DOJ for lying to her about the contents of the memo to keep it secret, arguing that Barr had already decided not to charge Trump before the memo laying out legal reasoning for the decision.

The Garland DOJ previously backed Trump’s moves to restrict immigration and urged a federal judge to dismiss lawsuits against Trump and Barr over their alleged decision to tear gas Black Lives Matter protesters near the White House so Trump could hold a photo-op in front of a nearby church — an allegation that was countered by a controversial watchdog report which found the DC Metropolitan Police, and not the U.S. Park Police under Trump and Barr’s control, were the ones who tear-gassed the crowd that day in Lafayette Square.

“Garland has quietly emerged as Donald Trump’s unwitting hatchet man, doing almost everything in his power to protect the lawless former president’s legacy,” Jeff Hauser and Max Moran of the progressive Revolving Door Project argued in a New Republic op-ed Tuesday. “Every day Biden keeps Garland in charge of his legal agenda is a day Trumpism is normalized, and the inevitable battle against it in 2024 gets that much harder.”

The DOJ has also come under fire after it was revealed that the DOJ under Trump secretly obtained the phone records of journalists at The New York Times, Washington Post, and CNN. After the reports, Biden vowed that he would not “let that happen” while he was president. But days later, a lawyer representing the Times‘ journalists said the Biden administration had imposed a gag order on his clients to prevent the information from becoming public — and mounted an unsuccessful campaign to obtain their email logs as well.

“The Biden Justice Department not only allowed these disturbing intrusions to continue — it intensified the government’s attack on First Amendment rights before finally backing down in the face of reporting about its conduct,” Fred Ryan, the publisher of the Washington Post, wrote in an op-ed last week. “This escalation, on Biden’s watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing.”

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