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 is an inadequate representative.”
Premature? Hardly. Since its inception, the Biden administration has woven a far-left agenda into the fabric of federal civil rights laws, including Title IX. In Executive Order 13,988, issued on his first day in office, President Biden announced that Title IX and its implementing regulations must be read to ensure that children have access to locker rooms, restrooms, and school sports consistent with their gender identity, not their biological sex.
Echoing that order, Deputy Assistant Attorney General Pam Karlan of the DOJ’s Civil Rights Division—the division charged with coordinating the enforcement and application of Title IX by executive agencies—concluded that, in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County, Title IX now applies to gender identity and sexual orientation, even though Congress has persistently rejected numerous attempts to amend the statute to do that very thing.
And now, in the face of these sweeping changes to civil rights laws and bowing to left-wing pressure, the DOJ will not even commit to defending Title IX’s statutory religious exemption as applied to religious colleges. Progressive writers have urged that “figuring out where Biden stands on religious exemptions and LGBTQ rights is critical right now.” The DOJ has now given them an answer.
But before embracing that path, the DOJ should consider that making war on religious exemptions in the name of LGBT rights represents a false choice, born of an intolerant ideology.
Religious exemptions under U.S. law are as old as our nation. Protecting religious organizations has long yielded substantial societal benefits—from feeding the hungry, to housing the homeless, to caring for the environment, to assisting struggling children and families, to educating our nation’s young. Exemptions are the product of an American culture that embraces freedom, diversity, and true tolerance.
Exemptions also reflect the Free Exercise and Establishment Clause protections enshrined in the First Amendment: The government cannot be in the business of telling religious organizations how they must act, who they must hire, and what they should believe.
Consistent with those principles, the Supreme Court has “allowed legislative accommodations for religious activity and upheld legislatively granted religious exemptions from generally applicable laws.” The high court “likewise has upheld government benefits and tax exemptions that go to religious organizations, even when those policies have the effect of advancing or endorsing religion.” The message from the Supreme Court is clear: Religious persons and organizations occupy a vital place at the center of the public life of our nation.
The court has echoed this theme even when striking down state laws prohibiting same-sex marriage and writing sexual orientation and gender identity into Title VII. In Obergefell v. Hodges, Justice Anthony Kennedy emphasized that religious persons “may continue to advocate with utmost, sincere convictions that, by divine precepts, same-sex marriage should not be condoned,” and that “religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”
In Bostock v. Clayton County, in response to those who feared the decision would force religious employers to violate their conscience, Justice Neil Gorsuch offered reassurance: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”
This abiding commitment to a free and pluralistic society is not shared by the leftist commissars who increasingly hold power in our nation’s public institutions. Take the example of Tanner Cross.
Tanner teaches at Leesburg Elementary School in Virginia’s Loudoun County Public School District. Upon hearing that the school board was considering a new policy that would require all teachers to use pronouns that reflect people’s gender identity, not sex, Tanner decided to speak up.
Citing medical evidence, he shared his belief that affirming gender confusion harms children, and his faith precludes him from telling lies. He respectfully shared those beliefs with the board on his own time—after the board invited public comment. For that, the board suspended Tanner and banished him from school grounds.
Thankfully, Alliance Defending Freedom filed suit on Tanner’s behalf, and the court ordered him reinstated. But Tanner’s ordeal is emblematic of an alarming trend.
Those in power—particularly those seeking to advance “social justice” and implement “critical theories”—brook no dissent, tolerate no diversity of thought, and give no quarter to their ideological opponents. That totalitarian impulse contradicts our nation’s foundational commitment to freedom of conscience, thought, and speech. It is fundamentally un-American.
That impulse cannot be allowed to trample accommodations and exemptions for religious persons and organizations that enable them to participate fully in the public square. The Biden administration and its DOJ should uphold the law, not ignore and rewrite it. And they must reject the disingenuous invitation of radical leftists to pit faith against freedom.
