Under Pressure from Activists, DOJ Walks Back Promise of ‘Vigorous’ Defense of Religious Liberty in Title IX Lawsuit

Yesterday, The Daily Citizen reported on the U.S. Department of Justice’s promise to undertake the defense of Title IX’s religious exemption for faith-based schools against a legal challenge from LGBT activists seeking to end sex-based distinctions at those schools in areas such as housing, restrooms and locker rooms. The DOJ told an Oregon federal judge on Tuesday that a request by certain Christian colleges and the Council of Christian Colleges and Universities (CCCU) to intervene as parties in Hunter v. U.S. Dept. of Education should be denied because the DOJ would undertake a “vigorous” defense of the federal law, and that the federal government and the Christian colleges “share the same ultimate objective.”

But within 24 hours of its filing, the DOJ began back-tracking on its emphatic commitment in the face of criticism from LGBT activists, including those who brought the suit.

In an “update” to its original story, The Washington Post reports that in an “amended” filing from the DOJ on Wednesday, the government softened its language considerably.

“However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday,” the Post update states, “taking out the word ‘vigorously’ to describe its defense of the religious exemption and retaining multiple uses of the word ‘adequate.’ It removed wording that said the Education Department and the Christian schools ‘share the same ultimate objective, … namely, to uphold the Religious Exemption as it is currently applied.’”

From “vigorous” to “adequate.” That certainly leads to questions about the DOJ’s commitment to religious freedom, and perhaps justifies the contention from those Christian colleges and the CCCU that the government can’t be trusted to do its job of defending the statute.

So what’s the big deal about the DOJ going from “vigorous” to “adequate” efforts to defend the statute? Don’t the DOJ lawyers have to defend the law, period? Why should Christians be concerned over what amounts to a “minor” language change?

First, the rapidity with which the DOJ undertook to make those “minor” changes to its Tuesday filing suggests that this administration is more responsive to the complaints of LGBT activists than concerns of the faith-based schools who will be impacted by this lawsuit. Such problematic behavior on the part of government lawyers speaks volumes.

Second, given the current administration’s public commitment to adding “sexual orientation” and “gender identity” to the definition of “sex” in Title IX, it’s reasonable for religious schools to conclude that leaving the DOJ in charge of defending Title IX is akin to leaving the fox in charge of the henhouse.

The DOJ also attempts to sway the court with the argument that the Christian schools and CCCU can always explain their arguments by way of an amicus, aka friend-of-the-court, brief. But being an amicus has its drawbacks – it won’t allow those colleges and CCCU to appeal any adverse decision the court makes against their interests. Only parties to the lawsuit can do that.

Now it’s up to the federal judge in the case to decide the issue of who gets to defend the religious liberty interests of religious schools – a conflicted DOJ or the schools themselves.

The Daily Citizen contacted the DOJ with a request to examine the amended filing to which The Post’s update refers but had not heard back by the time this article went to press. We’ll be following this case closely and let you know how the judge responds to the religious schools’ and CCU’s request to join the litigation, as well as the DOJ’s attempt to exclude them.

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