The filing came in a federal lawsuit in Oregon from students at religious schools who are suing the government for providing funding to schools with discriminatory policies.
The move seems to conflict with the Biden administration’s March memo from the DOJ’s Civil Rights Division pledging that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” but it also aligns with the DOJ’s duty to defend federal laws.
But as Justice Department attorneys noted in the court filing, “neither the Administration’s stated policy positions nor the Department’s review of existing regulations abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter.”
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This is the latest example where Justice Department’s positions in court have come under question from critics on the left expecting or anticipating different policies under Biden. Earlier this week, the DOJ argued that it should be allowed to substitute itself for former President Donald Trump in the defamation lawsuit filed by magazine columnist E. Jean Carroll. The Justice Department argued that since Trump was an employee of the government when the allegedly defamatory comment was made, the DOJ, rather than Trump personally, should serve as the defendant in the case. In late May, the DOJ argued to continue to keep portions of a 2019 memo from former Attorney General William Barr into whether former President Donald Trump obstructed the Russia investigation from the public.
The Justice Department did not respond to a request for comment.
In the Oregon case, the filing made clear that while the Biden administration will defend existing law, the Department of Education is conducting an extensive review of how it will implement the federal law in the future, given the administration’s policy guaranteeing freedom from discrimination in the educational setting.
The federal law at issue, part of Title IX of the Education Amendments of 1972, prohibits discrimination on the basis of sex in federally assisted education programs, but allows for a religious exemption for organizations with religious objections.
Attorneys at the Justice Department challenged the assertion from parties looking to intervene — Western Baptist University, William Jessup University, and Phoenix Seminary — in the case that the Biden administration would “not defend the Religious Exemption as vigorously as Religious Schools.” The Justice Department also said that it shared the “same ultimate objective” as the religious parties looking to intervene.
Plaintiffs in the case said they are dismayed by the Justice Department’s decision to defend the law.
“My clients feel betrayed by an administration the promised to protect LGBTQ+ students,” Paul Carlos Southwick, director of the Religious Exemption Accountability Project, said. “The Biden administration did not need to defend this unconstitutional religious exemption, and they certainly did not need to say that it ‘shares the same ultimate objective’ as anti-LGBTQ extremist group Alliance Defending Freedom.”