Merrick Garland is now defending discrimination against LGBTQ people

In addition to defending Trump in a case brought by a rape accuser. We can stop this by protesting loudly

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1. Garland becomes Barr’s, Trump’s and Pat Robertson’s lawyer

There was rightly a lot of outrage among progressives over the news that the Biden Department of Justice, led by Attorney General Merrick Garland, would continue to defend Donald Trump — and Bill Barr’s controversial decision to have the DOJ defend Trump — in the defamation case brought by writer E. Jean Carroll, who accused Trump of raping her in a department store dressing room in the mid-1990s.

It was a brazen action when Barr took the case from state court to federal court, intervening and having the DOJ taking up Trump’s defense in September of 2020, claiming Trump "was acting within the scope of his office as the President of the United States at the time of the alleged conduct." Carroll’s suit alleges Trump defamed her in his brutal verbal attack when he denied the rape allegation and accused her of being “paid’ to make the claims, adding she’s “not my type.”

Garland’s move to continue the defense is just as brazen. This action followed the Biden DOJ deciding to defend Trump and Barr from accountability in the fascistic action in clearing Lafayette Square last summer, using the military and police with batons and tear gas to allow Trump a photo op with a bible at a church. And it followed the Biden DOJ deciding not to release a full memo — ordered by a federal judge, who’s ruling it is appealing — that was cited by Barr to defend his decision not to charge Trump with obstruction of justice after the release of the Mueller report.

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Happy Pride, love Merrick Garland

Now comes the news, right in time for Pride month, that the Justice Department states it will “vigorously” defend religious exemptions for Christian schools that receive government money and discriminate against LGBTQ students.

The Justice Department in a court filing Tuesday said it can “vigorously” defend a religious exemption from federal civil rights law that allows federally funded religious schools to discriminate against LGBTQ students, a move that surprised some LGBTQ advocates who said the wording went further than just an obligation to defend an existing law.

In the filing, the Biden administration said it “shares the same ultimate objective” as the conservative Christian schools named in the case.

The lawsuit in question was brought by 40 LGBTQ students at conservative religious colleges and universities who are suing the government for providing money to schools that blatantly discriminate. The question isn’t whether the schools, private institutions, can have policies and rules that underly the schools’ religious beliefs, even if wrongheaded — but whether they can discriminate and receive government funding.

To defend the schools is a direct contradiction to everything Joe Biden has said he stands for, including his embrace of the Equality Act, which would ban discrimination broadly in federal law against LGBTQ people in housing, employment and public accommodations.

“What this means is that the government is now aligning itself with anti-LGBTQ hate in order to vigorously defend an exemption that everyone knows causes severe harm to LGBTQ students using taxpayer money,” Paul Carlos Southwick, director of the Religious Exemption Accountability Project, which filed the case in March, told the Washington Post. “It will make our case harder if the federal government plans to vigorously defend it like they have indicated.”

UPDATE: Please see Mark Joseph Stern, legal analyst who comes on my show every week, in his Slate piece, “No, the Biden administration is not betraying it support for LGBTQ rights.” And please read the comments below from Jillian Weiss, an LGBTQ civil rights attorney who, like Mark, I respect immensely and have known for a long time. Both of them note that it’s better the justice department take this case rather than letting the colleges do so. This analysis disagrees with Southwick’s claim that the government is now “aligning itself with anti-LGBTQ hate.” I trust respected legal analysts, even as the actions of Garland in recent weeks don’t give many of us faith in what he’s doing here and on this and other issues.

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Garland clearly was the wrong choice for attorney general. He’s a cautious centrist at at a time when we need a bold reformer. Many have said that he’s too much of an institutionalist — including me in recent days — but actually, thinking more about it, if he truly were an institutionalist, protecting the Justice Department at all costs, he would not be defending its predecessor, who corrupted the DOJ and turned it into a law firm for a rogue, criminal president. Doing so is allowing the corruption to continue — harming the institution rather than protecting it. And Garland is now using the Department of Justice to allow discrimination against a minority whose civil rights the DOJ — pre-Trump — had been defending.

We can stop this

All of this is deja vu of the Obama administration’s Department of Justice, which in 2009 decided it had to defend the Defense of Marriage Act because — well, just because it was the law, even if the administration disagreed with it. That was patently false, and — just as in the E. Jean Carroll case — we learned that it was driven by holdovers in the Justice Department from the prior Republican administration.

It was undone. But it took massive pressure — in the form of bloggers and journalists exposing what a betrayal this was to the LGBTQ community and how the claim was facetious. And it took protest, including interrupting President Obama’s speeches, protests at the DOJ and a march on Washington. In 2011, the Obama administration, heading into a re-election and certainly not wanting more division in the base, rightly decided to stop defending DOMA in court.

The world didn’t end. In fact, it helped bring equality and Obama went on to become one of the great champions among presidents regarding LGBTQ rights. We helped him become that.

One of those bloggers who was relentless, and got results, was my friend Joe Sudbay, who responded to the news about the E. Jean Carroll case in a tweet.

So people are going to have to make a lot of noise in a variety of ways, and get out in the streets. I said this during the 2020 campaign and I’ll say it again: There’s a lot we will like —and have liked — about Joe Biden’s actions, and a lot we won’t. We can applaud him when he does good things — and forcefully speak out when we see mistakes and injustices like this. We have to send a message loudly and clearly when Biden, who’s been responsive to criticism, isn’t doing what he promised.

2. Waving the rainbow flag

The Pride flag is back flying at embassies around the world for Pride month — even at the Vatican — after being banned by Mike Pompeo and the State Department during the Trump administration. The Biden administration rightly reversed policy swiftly.

And yet the hostility toward Pride that the Trump movement engendered continues in this country, leaving a mark on some institutions, even in the government, and promoting violence elsewhere.

Even as the State Department reversed, the Pentagon is keeping in place the ban on Pride flags on military bases ordered by Trump’s Defense Secretary, Mark Esper, (even as Biden’s Defense Secretary, Lloyd Austin, will participate in Pride festivities).

A Sacramento church had its Pride flag burned last week. A student in Florida was brutally stomped on for bringing a Pride flag to a picnic. Boaters terrorized people in another boat on a lake in Washington state two week ago because they flew Pride flags on their boat (Ironically, the only harm came to the harassers, whose boat exploded, ignited by an engine fire during the altercation). Wisconsin homeowners were told by their association to remove Pride flags; they got creative and doused their home in rainbow floodlights.

I’m not one for flying flags in general. But as long as people are burning it, banning it and stomping others because of it, I will proudly wave the rainbow flag.

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