The Biden Department of Justice briefly instigated outrage from progressives recently when it filed a routine legal brief promising to defend Title IX’s statutory exemption for religious colleges. The DOJ filed the brief to fend off efforts by religious colleges, some of whom are represented by Alliance Defending Freedom, to intervene in a lawsuit brought by 40 past and present LGBT college students who claim the exemption violates the U.S. Constitution.
The exemption safeguards the ability of religious colleges that receive federal funds to maintain faith-based polices governing such things as student sexual conduct and sex-specific student housing. The DOJ wrote in its brief that it shared the proposed intervenors’ “ultimate objective…to defend the statutory exemption and its current application.”
Reaction from the left was swift and apoplectic. Speaking with The Washington Post, the students’ lawyer accused the DOJ of “aligning itself with anti-LGBTQ hate” and complained that the DOJ’s position “will make our case harder if the federal government plans to vigorously defend” the exemption.
Writing for The New Republic, Melissa Gira Grant proclaimed, “the Biden administration is now facing serious doubts about how far it is willing to go in the fight for LGBTQ rights.” Slate writer Mark Joseph Stern mused that while “Biden’s progressive supporters may be offended by the DOJ’s defense of discrimination,” the alternative—allowing religious colleges to intervene and defend their rights—“is almost certainly worse.”
Stunned by this sudden revolt, the DOJ quickly backpedaled. The day after the filing, the DOJ amended its brief, eliminating any mention of shared objectives, dropping its commitment to defend the “current application” of the exemption to religious colleges, and casually noting that the religious colleges could always seek intervention later “if it transpires” that the DOJ is “not fully defending” the exemption as applied them.
Amid this tour de force in obfuscation, the DOJ made one thing clear: the Department of Education is reviewing its Title IX regulations to ensure their consistency with the Biden administration’s “policy on guaranteeing an educational environment free from discrimination on the basis of sex.” Also, “until that process is complete,” the DOJ noted, “it would be premature to conclude that the government
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