Presidents do not always direct the Department of Justice to defend current law. Barack Obama, for instance, declined to defend the Defense of Marriage Act, even though his executive branch continued to enforce it.
So, it is of no small significance that the Department of Justice, under President Joe Biden, filed a court action earlier this week suggesting it would defend a religious exemption to anti-LGTBQ discrimination laws just as competently as would attorneys representing religious schools. Several such schools have been sued in a case that seeks to overturn that exemption.
But it was disturbing that the administration then did an abrupt partial backtrack under obvious pressure from interest groups that were alarmed by that filing.
According to The Washington Post, the Justice Department amended its court filing, removing the adjective “vigorously” to describe how it intended to defend the religious exemption. It also removed a part that originally said it shared “the same ultimate objective” as the religious schools, which is “to uphold the religious exemption as it is currently applied.”
As with the Defense of Marriage Act, exemptions to anti-discrimination law are a touchstone in the culture war between religious liberty and the ever-widening expanse of protected behavior.
This change in wording is a troubling development that suggests the administration would be half-hearted in its defense which, in turn, suggests the schools might be better served by mounting their own defense, instead — the very thing the Justice Department’s court filing was meant to avoid.
This case is important because the free exercise of religious liberty is the first freedom mentioned in the Bill of Rights. Unlike a host of other rights established by statute, it was sanctioned by the nation’s founders as fundamental to human dignity, and, by implication, a condition for prosperity.
Even before the Justice Department watered down its filing, the schools involved had every reason to be skeptical about government support.
Both sides in the case, which involves Christian schools that receive federal funding but uphold traditional teachings about sexuality and gender, had assumed the Biden administration would support the LGTBQ side in the dispute.
The original court filing touched on this.
Attorneys for the schools, it said, “cite a variety of statements and actions taken by the current administration regarding protecting LGBTQ+ individuals from discrimination in a variety of contexts and then leap to concluding that ‘the current defendants will not defend the religous exemption as vigorously as religious schools.’”
That “leap” is understandable. However, the Justice Department argued it is a false leap, suggesting the administration shared the same “ultimate objective” as the schools.
But with that language now amended, the leap has become little more than a logical step.
It would be “premature,” the filing said, “to conclude that the federal defendants would neglect to raise, or be ‘ill-equipped’ to develop, effective arguments in support of the religious exemption, including those regarding the legislative intent behind the exemption and the intersection between the religious exemption and the free exercise and establishment clauses of the First Amendment.”
Now, it seems far less premature to draw that conclusion.
The filing, in a case known as Hunter v. Department of Education, urged a federal court in Oregon to reject the schools’ plea to mount their own defense in the case. The lawsuit was brought by 40 LGBTQ students at the schools who claim they have suffered “oppression, fueled by government funding.”
Ideally, this case would be a vehicle for courts to craft a careful compromise that protects the free exercise of religion while protecting people from undue discrimination. Federal law contains other examples of accommodations for religious beliefs. The Fair Housing Act, for instance, allows exemptions for religious organizations that provide preferences to members of their own religion.
Utah lawmakers showed this could be done when, in 2015, they passed a bill that protects LGBTQ people from discrimination in housing, while also protecting religious liberty.
The Oregon court will have to decide whether Justice Department attorneys really are up to the task of defending the religious schools. Like all defendants, they deserve the most vigorous defense possible.