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Biden, LGBTQ+ rights, and the duty to defend

News broke in the late afternoon Wednesday that the Biden administration plans to continue to defend the federal government in Hunter v. Goldberg, what could potentially be a major case for LGBTQ+ civil rights. The case stems from the Trump administration and deals with the right of religious schools to discriminate against LGBTQ+ students and it’s the kind of thing you would not expect the Biden administration, at the peak of Pride month, to say they’re ready to defend. So why did they?

The executive branch has a duty to defend federal laws when they’re challenged in court, at least theoretically. The idea is that, even if the White House disagrees with a law, it has an obligation to enforce and uphold that law. It’s part of the oath of office and everything.

In 2011, the Obama administration – in which current President Joe Biden was the vice president – announced it would not defend the Defense of Marriage Act, a 1996 law that prohibited the federal government from recognizing same-sex marriages. Attorney General Eric Holder said at the time that the administration believed the law violated the Fifth Amendment and that the president’s primary duty is to defend the Constitution. There’s more to this – which has to do with how precedent works in the different federal courts and other technical legal rigmarole – but the gist was that the Obama administration wasn’t gonna defend the law.

Instead, the Bipartisan Legal Advisory Group (a legal arm of the U.S. House of Representatives) defended the law. In 2013, the Supreme Court ruled that the Defense of Marriage Act was, indeed, unconstitutional.

In the Hunter case, the Biden administration is citing its duty to defend specifically to block someone else from defending the suit. Since the suit deals with how the U.S. Department of Education allocates funding to schools, the federal government is the defendant, not the schools. But the schools argued that they should be the defendants instead because they don’t trust that the Biden administration will actually defend the law.

Faced with this possible out – just like in the Defense of Marriage Act case – the Biden administration decided instead to double down, vowing that it could defend the law better than anyone even though an executive order issued the day Biden took office says, “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes… All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”

The executive branch’s duty to defend the law is important to the functioning of a civil society. But in this case, there were others willing to defend the law on the Biden administration’s behalf, and defending the law is deeply concerning to many Biden supporters – especially those who already had concerns over Vice President Kamala Harris’ role in keeping nonviolent offenders incarcerated so the state could use them as a supply of cheap labor.

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