At DOJ, a Brief Encounter with LGBT Outrage

June 14, 2021

It's Flag Day, and we all know which one the Biden administration is flying. This president has pledged his allegiance to the LGBT cause so completely that he can't even give religious freedom a passing nod without being skinned alive by the radical Left. Last week, when the Justice Department even hinted at defending the constitutional rights of Christian colleges, the fringe wing of the party blew a gasket. The DOJ is "aligning itself with anti-LGBTQ hate," they cried. Actually, the Justice Department was just doing its job. But they won't be doing it long, if outside extremists get their way.

In normal days (which these are not), the government wouldn't have thought twice about filing a brief in this case. At its core, it's about stripping Christian universities of their federal aid if they refuse to renounce their core beliefs on gender and sexuality. There was a time, not too long ago, when people on both sides of the aisle would have agreed that the whole idea was unconstitutional on its face. But times -- and presidents -- have changed, and now, even the slightest nod in the First Amendment's way is considered a violent betrayal by LGBT activists. Even in instances like this lawsuit that is aggressively trying to tear down a religious exemption that's existed (at least in principle) since the founding of this nation.

It shouldn't be controversial that the agency tasked with upholding the law says they will "vigorously" defend it. And yet, when the DOJ wrote in its brief that it shared the colleges' "same ultimate objective... namely, to uphold the Religious Exemption as it is currently applied," that was considered treachery of the worst kind by the LGBT Left. The Religious Exemption Accountability Project (REAP), the extremists who recruited "oppressed" students at these schools to sue, blasted the Biden administration, insisting that its clients feel "betrayed by an administration that promised to protect LGBTQ+ students." The Justice Department "did not need to defend this unconstitutional religious exemption," REAP Director Paul Southwick fumed, "and they certainly did not need to say that it 'shares the same ultimate objective' as anti-LGBTQ extremist group Alliance Defending Freedom."

Message received. That same night DOJ attorneys scrambled to make last-minute changes to the brief, altering any language that might make it seem like they supported American institutions living out their faith in education. By morning, agency lawyers had rewritten pieces of its arguments, weakening the support for schools and phrases like "vigorously defend" vanished, along with any references to their shared objectives. But nothing short of dropping the case goes far enough for radicals like Southwick. "This out-of-touch position will only serve to harm more LGBTQ students at religious colleges and permit continued taxpayer-funded discrimination at these institutions."

The plaintiffs of the suit, students from more than two dozen Christian schools, say they want "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." Of course, the irony is, no one forced these students to go to Christian universities with biblically-based ideologies and codes of conduct. But for whatever reason, they've gone along with the Left's attempt to blow apart the entire Title IX religious exemption -- a move the Council of Christian Colleges and Universities (CCCU) called "an existential threat to religious higher education." If the case succeeds, they argue, it will "deprive religious colleges of the oxygen that gives them life by forbidding them, on pain of losing federal assistance for their students, from teaching and expecting adherence to their core religious beliefs."

Most people were shocked the Biden DOJ would even come to the defense of these schools in the first place. After all, what has the White House done in five months that would suggest they have any interest in protecting Christians or Christian institutions whatsoever? This is the same president whose day one priority was the Equality Act, a dangerous bill that would gut religious freedom across the board. And when the Senate didn't race to pass it, he did the next best thing: issued an executive order demanding an education environment "free from discrimination" for LGBT-identifying students. That included a mandate on gender-free bathrooms, locker rooms, and sports.

The idea that the Biden administration is suddenly itching to help conservative Christian schools isn't what's behind this move. Left-leaning Slate seems to agree, trying to calm down LGBT allies by explaining the real rationale behind the agency's brief. This isn't the president selling out his most passionate cause, Mark Stern insists. "Biden's progressive supporters may be offended by the DOJ's defense of discrimination, but the alternative is almost certainly worse... The Justice Department is not only following its general obligation to defend federal laws, it's also trying to prevent a Christian organization from taking over the defense and mounting extreme arguments that could lead to a devastating subversion of civil rights law."

Translation: If the Left keeps pressing its luck on this question, Christian colleges could trigger a ruling that could expand religious freedom and roll back all of the radical and unconstitutional orders of this administration. "If the agency does not mount a vigorous defense, it will leave room for CCCU and similar organizations to leap in and argue that, if anything, the exemption isn't broad enough." Either way, the other side has an uphill climb. Religious freedom is as old as America itself, and exemptions, Alliance Defending Freedom attorney Ryan Bangert points out, are the product of a culture "that embraces [liberty], diversity, and true tolerance." The totalitarian impulse driving this lawsuit "contradicts our nation's foundational commitment to freedom of conscience, thought, and speech. It is fundamentally un-American." Let's hope the court agrees.