The Justice Department in a court filing Tuesday said it can "vigorously" defend a religious exemption from federal civil-rights law that allows federally funded religious schools to discriminate against LGBTQ students, a move that surprised some LGBTQ advocates who said the wording went further than just an obligation to defend an existing law.
In the filing, the Biden administration said it "shares the same ultimate objective" as the conservative Christian schools named in the case.
"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, which filed the case in March on behalf of dozens of current and past students at conservative religious colleges and universities. "It will make our case harder if the federal government plans to vigorously defend it like they have indicated."
At issue in Hunter v. the U.S. Department of Education are 40 LGBTQ students at conservative religious colleges and universities who are suing the government for its role in providing funding to schools with discriminatory policies. The schools say they have a First Amendment right to promote traditional religious beliefs about sexuality and gender.
"The Plaintiffs seek safety and 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," reads the March suit, filed in U.S. District Court in Oregon. "The Department's inaction leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness."
Billions in federal money for things such as scholarships and grants flow through the U.S. Department of Education.
But the Council of Christian Colleges and Universities, whose members include many of the schools named, said in a May motion that the Biden administration couldn't be trusted to adequately defend the schools' beliefs, and "may be openly hostile to them." Its motion asked to intervene and be part of the case.
However, the Justice Department filed an opposition on Tuesday to the Council of Christian Colleges and Universities' request and that of several other Christian schools to join the case. It said the Department of Education and the Christian schools "share the same 'ultimate objective' ... namely, to uphold the Religious Exemption as it is currently applied." The parties' shared interests, the filing said, are "identical."
A spokesperson for the Education Department declined to comment and a request to talk with the Justice Department attorney who wrote the motion was not answered Tuesday.
It wasn't immediately clear the Biden administration's thinking on the issue that is at the center of several major recent Supreme Court cases: tensions between religious liberty and anti-discrimination laws. President Joe Biden is also in the midst of pressing for passage of the Equality Act, a sweeping measure that would add gender identity and sexuality to the groups protected under the Civil Rights Act, while significantly weakening exemptions for religious groups and people.
The motion said in a note that "To be sure, the Federal Defendants have not yet filed any pleading or motion setting forth their legal position in this case."
And the Justice Department is expected to defend federal laws.
However, the country is in the thick of hashing out legal rights around religion, sex, sexuality and gender identity and the Biden administration has presented itself as an unwavering ally for full equality.
Shirley Hoogstra, president of the Council of Christian Colleges and Universities, said Tuesday night she was relieved to see the administration say it wants to "defend religious exemptions" and feels Christian schools that will be affected by the case should have a representative at the table.
"We'll see what happens. We're pleased they want to defend religious exemption," she said.