In a major gaffe, the Biden-Harris administration announced to a federal court last week that it would “vigorously” defend religious freedom. The next day, in response to LGBTQ advocates, Justice Department lawyers reversed course, submitting a corrected brief that omitted the word “vigorously” and promised instead only that their defense would be “adequate.” This was an ill-considered reversal which the Biden administration must not let stand.
Why would any administration think it a mistake to pledge vigorous defense of America’s first freedom, the free exercise of religion? In particular, why would the Biden Justice Department do so just months after Attorney General Garland pledged to the U.S. Senate that “I am a strong believer in religious liberty and there will not be any discrimination under my watch”?
The context is an Oregon federal lawsuit that LGBTQ students brought against Suzanne Goldberg, my successor as head of the U.S. Department of Education’s Office for Civil Rights, to overturn as unconstitutional the exemption that religious colleges enjoy against Title IX regulation. Title IX, the 1972 federal sex discrimination statute, exempts colleges that are “controlled by a religious organization” if adherence would interfere with the institution’s doctrines or practices.
LGBTQ advocates have chafed against this exemption especially since 2020’s Bostock v. Clayton County, in which the Supreme Court held that sex discrimination encompasses sexual orientation and transgender discrimination. Although the Court has not yet decided whether this rule applies to Title IX, Secretary of Education Miguel Cordona has repeatedly expressed his view that it does. For religious colleges, this makes the Religious Exemption especially important.
Christian colleges sought to intervene in the lawsuit, wary the administration might not defend their freedom. The administration resisted, telling Oregon’s federal court that it need not permit the colleges to intervene, since the Department would “vigorously” defend the statutory exemption. The administration might have been sincere. Or they might have said this only to block the involvement of conservative colleges whose views they disdain. Either way, they backed off after facing backlash, committing only that their representation would be “adequate.”
The issue is not so much that religious colleges want to violate Title IX. It is rather that they abhor intrusive governmental inquiries and involvement. Religious colleges have been stigmatized for asserting their constitutionally protected free-exercise rights. When the Education Department has listed the beneficiaries of its exemptions, critics castigate the lists as rolls of shame. This is disrespectful to religious institutions. Like secular colleges, they attend to their students’ need for worldly knowledge. Beyond that, they undertake the care of their community’s spiritual development, catering to needs that should not bow to Caesar’s laws.
While the Justice Department’s reversal has attracted media attention, its brief contains an even more troublesome remark that has largely escaped notice. The Christian Colleges had expressed their concern that the administration might use pending review of sexual harassment regulations to restrict the Religious Exemption. Troublingly, the administration did not deny this intent. Indeed, they concede that their review of sexual harassment regulations will be “comprehensive.” They say only that the colleges “can only speculate” that the administration “will back away from a full defense” of the Religious Exemption. Unfortunately, everyone else can only speculate about this now too.
Even those who do not care about Christian colleges should care about the broader ramification of this shift. To begin with, it reflects a broader pattern of mainstream institutions backing away from laudable statements in the face of political pressure. Consider, for example, the chancellor of Rutgers University-New Brunswick, who last month issued a rather tepid statement opposing anti-Semitism and “all forms of bigotry, prejudice, discrimination, xenophobia, and oppression.”
The statement responded to the egging of a Jewish fraternity house during a Holocaust remembrance event. When pro-Palestinian activists complained, the chancellor issued a public apology and removed the statement from the university’s active website. The university’s president stepped in, issuing another statement “on hatred and bigotry.” Nevertheless, the message was clear: standing up against religious bigotry requires courage. Not all leaders will resist the backlash.
In the context of the Oregon case, Biden officials may be understandably concerned about LGBTQ students. Whether or not it is legally correct that Bostock applies to Title IX, as Mr. Cordona assumes, it is appropriate to express concern for those students who face daily hostility because of their sexual orientation. The deeper danger is that concern for this group of students will distract the administration from the equally important task of protecting persons of faith from the violations our First Amendment is intended to prevent.
Whatever their views on policy issues, the Biden administration must defend our constitutional freedoms with more than an “adequate” degree of support. In other words, they must provide more than the bare minimum effort that law and ethics require. We need not expect an embrace of Sen. Barry Goldwater’s famous admonition that “Extremism in defense of liberty is no vice.” But we can hope at least for agreement that “Moderation in pursuit of justice is no virtue.”
• Kenneth L. Marcus is founder and chairman of The Louis D. Brandeis Center for Human Rights Under Law and served as assistant U.S. secretary of education (2018-2020).
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