Less than 24 hours after this news was reported, the DOJ began back-tracking on its emphatic commitment to “vigorously defend” religious freedom in the face of criticism from LGBT activists – including those who brought the suit. Read the update, here.
Taking an action that pleasantly surprised defenders of religious freedom, the U.S. Department of Justice (DOJ) this week informed a federal judge that it would undertake the defense of faith-based schools under Title IX. If successful in defeating a lawsuit brought against these schools by LGBT students and alumni, the DOJ’s actions would allow them to retain their sex-based distinctives such as men’s and women’s housing, restrooms and locker rooms.
Title IX, a 1972 federal law that prohibits sex discrimination in education, also contains a recognition that faith-based schools, including Christian primary and secondary schools and universities, provide an education based on those religious beliefs. The law’s religious exemption protects such schools from otherwise being found guilty of discrimination because of their beliefs, practices and conduct codes, potentially preventing such schools from receiving federal funds via student loans and scholarships.
The Washington Post reports that lawyers with the DOJ informed a federal district court judge in Oregon, in a case titled Hunter v. U.S. Dept. of Education, that it would be defending the rights of faith-based colleges in that case. Although the DOJ has yet to submit a formal pleading in the case, its action was taken in response to court motions from three Christian colleges and universities – Western Baptist College, William Jessup University and Phoenix Seminary – as well as the Council for Christian Colleges and Universities (CCCU), asking to intervene in the case to defend Title IX’s religious exemption against a challenge from a group of current and former LGBT students and activists.
The colleges and CCCU asserted that the present administration, named as the primary defendant in the litigation, would not adequately defend their interests because the policies it has implemented and executive orders it has issued all suggest that the administration is sympathetic to the claims of the LGBT plaintiffs in the case and therefore will not vigorously defend the law.
Not so, says the DOJ. In its legal filing asking the judge to deny the request of the colleges and CCCU to intervene, lawyers for the administration state that the government and the religious colleges and CCCU “share the same ultimate objective,” namely, to protect the religious exemption contained in Title IX.
The DOJ’s move was decried by the LGBT activist organization that brought the lawsuit on behalf of the named plaintiffs. “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,” said Paul Carlos Southwick, director of the Religious Exemption Accountability Project, according to The Post. “It will make our case harder if the federal government plans to vigorously defend it like they have indicated.”
Shirley Hoogstra, president of CCCU, sounded a cautiously optimistic note in response to the DOJ’s promise to vigorously defend the law. “We’ll see what happens. We’re pleased they want to defend religious exemption,” she said.
Although it is typically DOJ’s policy to defend the laws and Constitution of the United States in lawsuits brought challenging them, there have been significant examples of times where DOJ has done just the opposite, as when LGBT activists challenged the federal Defense of Marriage Act, gaining a Supreme Court victory in 2013 with the support of the Obama administration.
If the lawsuit ultimately forces Christian colleges and universities to adhere to the culture’s new definition of “sex,” which includes sexual orientation as well as gender identity, then such colleges and universities will either have to choose between compromising their faith tenets or foregoing all federal aid. The latter option would prevent thousands of needy students from accessing the education of their choice and put many Christian colleges and universities at risk of bankruptcy.
The Daily Citizen will keep you apprised of developments in this case.
Photo from Shutterstock