On Tuesday, the Department of Justice told a federal court that it intends to defend a federal law that allows private religious colleges and universities to discriminate against LGBTQ students. At first blush, the DOJ’s filing in Hunter v. Department of Education may seem surprising: President Joe Biden has, after all, promised to promote LGBTQ rights, including the rights to all students to receive an equal education. But the Biden administration’s move in Hunter should not be interpreted as a betrayal of these values. The Justice Department is not only following its general obligation to defend federal laws; it’s also trying to prevent a Christian organization from taking over the defense and mounting extreme arguments that could lead to a devastating subversion of civil rights law. Biden’s progressive supporters may be offended by the DOJ’s defense of discrimination, but the alternative is almost certainly worse.
Hunter involves Title IX, the 1972 law that bars discrimination “on the basis of sex” at educational institutions that receive federal funds. In 2020’s Bostock v. Clayton County, the Supreme Court held that sex discrimination encompasses anti-LGBTQ discrimination, so the law protects gay and transgender students as well. But Title IX contains an important exemption: It does not apply to any institutions “controlled by a religious organization” if adherence to the law is inconsistent with the organization’s “religious tenets.” In other words, religious colleges and universities may still discriminate against LGBTQ students without imperiling their federal funding.
In Hunter, 33 students who faced such discrimination at religious colleges and universities sued the Department of Education, arguing that Title IX’s exemption is unlawful as it applies to LGBTQ students. They alleged that the exception for religious schools violates their own constitutional rights, as well as the First Amendment’s establishment clause. They also challenged a regulation that explained what it means for a school to be controlled by a “religious organization,” since the term is not defined in the law.
With very few exceptions, the Department of Justice has a duty to defend federal laws in court. Yet before the DOJ could even respond to Hunter, the Council for Christian Colleges and Universities—which represents more than 180 Christian institutions that do not want to comply with civil rights laws—jumped in. CCCU urged a judge to let it intervene in the case and defend the Title IX exemption, arguing that the Justice Department will “not only fail to make the points necessary to defend Title IX’s religious exemptions as applied to sexual and gender minorities, but it may also instead be openly hostile to them.” For evidence, CCCU cited Principal Deputy Assistant Attorney General Pam Karlan’s memo requiring full implementation of Bostock’s reasoning to Title IX. It also pointed to Biden’s various statements in support of LGBTQ rights, including his promise to “end the misuse of broad exemptions to discriminate,” as well as his support for the Equality Act, which would amend civil rights laws to expressly cover LGBTQ people.
These predictions are misleading. Biden has never suggested that he will fail to enforce or defend existing law, even if it authorizes anti-LGBTQ discrimination. His criticism of “the misuse of broad exemptions” focused on Trump administration policies that carved loopholes into existing civil rights laws, like a 2020 regulation letting health care providers refuse to treat LGBTQ patients. Implementing Bostock will have no effect on religious schools that are already exempt from nondiscrimination rules. And while Biden supports the Equality Act, that measure would not amend Title IX’s religious exemption either.
Why, then, is CCCU so eager to insert itself into this litigation? The likely answer can be found elsewhere in its filing, which makes sweeping arguments about religious schools’ right to discriminate. CCCU declared its intent to “establish that the Title IX exemption” is not only lawful, but “constitutionally required.” The organization alleged that religious institutions have a First Amendment right to discriminate against LGBTQ students however they see fit. Title IX’s exemption, in CCCU’s view, merely recognizes these institutions’ freestanding constitutional entitlement to mistreat gay and transgender students.
This position does not have any explicit basis in precedent, but recent Supreme Court decisions in favor of Christian schools suggest that the conservative justices are eager to free religious institutions from civil rights laws. If the courts adopted CCCU’s position, they would effectively turbo-charge the existing exemption. Schools might not even have to prove that they are actually “controlled by a religious organization,” or that non-discrimination law violates their “religious tenets.” Instead, to honor their “autonomy with respect to internal management,” courts would have to defer to schools’ own representations about their need to discriminate. And Congress would have no authority to tighten or close this loophole through future legislation.
The best way to prevent the federal judiciary from adopting CCCU’s extreme stance is to stop the organization from making it before a court in the first place. That is presumably one reason why the Justice Department strongly opposed the group’s request to intervene, insisting on Tuesday that the administration can defend the Title IX exemption just fine by itself. The DOJ’s latest filing does not imply that the agency is exceedingly enthusiastic about the exemption, but rather that the Biden administration can be trusted to support the law’s legality in court.
Paul Carlos Southwick, director of the Religious Exemption Accountability Project—which filed this lawsuit on behalf of the plaintiffs—told the Washington Post’s Michelle Boorstein that “the government is now aligning itself with anti-LGBTQ hate.” But what other options does the Justice Department have? It could decline to defend the exemption, much like the Obama administration stopped defending the federal same-sex marriage ban. This move would amount to the nuclear option, one that presidents typically resort to only when they are convinced a law is blatantly, invidiously unconstitutional. Title IX’s exemption just doesn’t fit the bill. (Trump’s Justice Department violated this tradition, but its lawlessness probably shouldn’t be emulated.) Southwick took issue with the DOJ’s suggestion that it will defend the exemption “vigorously”—but again, what is the alternative? Should the DOJ announce that it will only defend the exemption half-heartedly? If the agency does not mount a vigorous defense, it will leave room for CCCU and similar organizations to leap in and argue that, if anything, the exemption isn’t broad enough.
On March 8, Biden issued an executive order directing the Department of Education to take any “additional enforcement actions” necessary to implement Title IX’s protections for LGBTQ students. The administration is racing to enshrine Bostock in federal regulations that apply to secular schools. But there is nothing the president, on his own, can do about Title IX’s exemption. Congress created it, and Congress can abolish it; in the meantime, the Justice Department must defend it—not as a policy matter, but as a duly enacted federal law. There may be instances in which the DOJ has betrayed Biden’s principles in a misguided effort to preserve its own institutional prerogatives. This is not one of them.