A lukewarm defense of religious liberty

The Biden administration’s progressive LGBT agenda is colliding with U.S. Attorney General Merrick Garland’s defense of a Title IX exemption for Christian universities and colleges. The Department of Justice in a brief last week promised a “vigorous” defense of the exemption that allows religious schools to require students to adhere to codes of conduct that bar sex outside of marriage between one man and one woman. But it backed down following criticism from LGBTQ advocates.

Thirty-three students who attended many high-profile religious schools that receive federal funding filed a class-action lawsuit on March 29 claiming the religious exemption violates a variety of constitutional rights, including freedom from discrimination based on sexual orientation and gender identity. Since the lawsuit doesn’t name the schools, defending the exemption from federal nondiscrimination laws rests with Garland’s Justice Department.

Three schools—Corban University, William Jessup University, and Phoenix Seminary—and the Council for Christian Colleges and Universities have asked to intervene as defendants with an aim to get the case dismissed. The schools noted that President Joe Biden issued a transgender mandate on his first day in office, among other actions, suggesting they couldn’t trust the department to defend their religious convictions.

That concern appears justified. On Tuesday, the Justice Department filed a brief opposing the schools’ motion to intervene, promising a “vigorous” defense and saying the government shared “the same ultimate objective” as the schools: upholding the religious exemption. A swift backlash by LGBT advocates followed.

The next day, Justice Department lawyers filed an amended brief, promising only “adequate” defense of the law, removing several references to sharing the “same ultimate objective” as the schools, and making clear that the government’s position could change after its review of Title IX regulations.

Garland’s nuanced approach may be an attempt to signal a dutiful, if reluctant, defense of the existing law. But the toned-down language buttresses the schools’ contention that they can’t rely on the government to defend their interests. As the schools note in their motion, the department stated it believes discrimination “on the basis of sex” under Title IX includes sexual orientation and gender identity.

Whatever the outcome, a lot is at stake for the schools. Overturning the exemption would cut off federal financial aid for students, said Shirley V. Hoogstra, president of the CCCU. That “would have a disproportionate impact on low-income and first-generation college students, as well as students from racial and ethnic minority groups,” she added.