Last week IRFA submitted a comment to the federal government in response to the early-February Notice of Proposed Rulemaking (NPRM) about "accommodating" non-exempt religious organizations that object to the HHS contraceptives mandate. The comment is available here.  

The comment refers to June 11, 2012, letter to HHS Sec. Sebelius protesting the administration's two-class scheme of religious organizations, a letter signed by nearly 150 Protestant and Catholic leaders and supporters of a wide range of religious organizations. That letter is available here.  

About two weeks ago, 110 members of Congress sent President Obama a letter pressing him to issue an ENDA (Employment Nondiscrimination Act) Executive Order banning federal contractors from discriminating on the bases of sexual orientation or gender identity in their employment policies.

Historically, Presidents have taken the lead in crafting anti-discrimination rules for federal contractors--private businesses and nonprofits that supply goods and services to the federal government. This is distinct from the rules for federal grantees--private organizations that receive federal funds to provide services such as education, drug training, and health care to others. In the case of grants, and when no government money is involved at all, Congress has written the anti-discrimination rules for workplaces. The premier federal job discrimination rule--Title VII of the 1964 Civil Rights Act--does not mention sexual orientation or gender identity, but it does explicitly protect religious hiring decisions made by religious organizations.

Congress has so far not adopted an ENDA bill, although bills have been proposed for nearly twenty years. The members of Congress who wrote to the President in March are urging him to act quickly, using executive power, as they work to get their colleagues in Congress to adopt an ENDA bill that would extend far beyond an ENDA Executive Order. The President has said he prefers the Congress adopt the comprehensive protection. However, the recent congressional letter is just one sign of the strong and growing pressure on him to act unilaterally, not waiting for Congress.

Would an ENDA Executive Order include language protecting faith-based organizations? Faith-based organizations that do consulting and training, for example, ought to be able to compete for federal contracts. USAID, which funds overseas relief and development work, is shifting more of its funding from grants to contracts, so an ENDA Executive Order could affect faith-based organizations involved in such work.

Faith-based organizations that hire on a religious basis were given the freedom to compete for federal contracts when President Bush in 2002 amended earlier Executive Orders banning discrimination by federal contractors. Will President Obama keep that religious hiring protection? Will his Executive Order protect faith-based contractors that have religion-based conduct standards-or simply override their religious hiring freedom when sexual orientation and gender identity are involved?

The ENDA bill adopted by the House in 2007, and the subsequent bills introduced in the House and Senate have included a strong religious exemption: religious organizations free to hire on the basis of religion due to the Title VII religious exemption are not subject to ENDA's new nondiscrimination requirements.

That language is good, but insufficient. Any ENDA Executive Order, and any new congressional ENDA bill, should go further if they are to fulfill the stated aims of ENDA's supporters: to protect the rights of LGBT persons without trampling on religious rights.  

Here's the additional religious freedom protection that is needed (the following is drawn from the work of an IRFA-sponsored working group):

Section 6 of ENDA as adopted by the House in 2007 and as proposed in both the House and Senate in 2009 and 2011 has a forthright exemption for religious organizations. However, for this promised protection to be effectual in practice, ENDA needs several small but vital additions. Without these changes, ENDA is likely to cause harms to religious organizations because it will insufficiently protect religious freedom.

An exemption for religious organizations is vital because of the differing views about homosexuality held by various religious communities. Exempting religious organizations enables them to maintain employment policies that comport with their fundamental religious convictions. In the bills referenced above, ENDA exempts from its coverage all religious organizations that are eligible for the religious exemption of Title VII of the Civil Rights Act of 1964. This broad exemption, first introduced in the ENDA bill passed by the House in 2007, is a great improvement over the religious exemption language proposed earlier in 2007.

Protecting the freedom of organizations in the non-discrimination context, however, requires more than an exemption. The 1990 Supreme Court decision Employment Division v. Smith undermined the "compelling interest" test, such that legislatures must take exceptional care to preserve religious freedom in the context of a general law such as ENDA. The Religious Freedom Restoration Act was adopted by Congress in 1993 to restore the "compelling interest" standard and thereby protect religious freedom. Yet in the current environment of heightened activism to curtail discrimination against individuals, some may say that by adopting ENDA Congress has implicitly announced that the federal government has a "compelling interest" not to grant an exemption to religious organizations even though compliance with ENDA would substantially burden their religious exercise.

Furthermore, developments in parallel areas of law and contemporary activism demonstrate the need to forestall the likelihood of retaliation against organizations eligible for an exemption. Retaliation by public officials against the Boy Scouts following the Supreme Court's upholding of its policy on openly gay Scoutmasters led Congress to adopt the Boy Scouts of America Equal Access Act (2002). The New Hampshire same-sex marriage law (HB 73) not only provides that religious organizations cannot be compelled to supply services, facilities, etc., in connection with same-sex marriages but also that the refusal to provide those services, facilities, etc., "shall not . . . result in any state action to penalize or withhold benefits" from the organization that has utilized its freedom. Similarly, the Canadian same-sex marriage act (Bill C-38) includes language amending the Income Tax Act to ensure that religious charities do not lose their registration consequent to exercising their freedom not to support marriages that conflict with their fundamental convictions. By enacting such provisions, legislatures have acknowledged the importance of providing statutory protection to religious entitles against likely retaliatory action.

The religious freedom intention of the religious exemption of Sec. 6 will be more securely carried out in practice if the following three provisions are added to ENDA:

To Sec. 2. Purposes:

[new] subsec. (3) to strike a sensible balance between employment nondiscrimination requirements and religious freedom;

To Sec. 8. Construction:

[new] subsec. (d) Religious Liberty. Nothing in this Act shall be construed to establish a compelling government interest relevant to a claim under the First Amendment of the Constitution of the United States or under 42 U.S.C. §2000bb et seq. (the Religious Freedom Restoration Act of 1993).

To Sec. 6. Exemption for Religious Organizations:

[new] subsec. (b) A religious employer's exemption from this Act shall not result in any action by any federal, state, or local government agency, which receives federal funds, to penalize or withhold licenses, permits, grants, tax-exempt status, or any other benefits from that employer, or prohibit the employer's participation in programs sponsored by that federal, state, or local government agency.

In addition, to provide for those instances when an employer, whether religious or secular, should reasonably be able to specify that a particular employee, because of his or her duties, must comply with the tenets and teachings of a religion or should fit with some other lifestyle pattern, a Bona Fide Occupational Qualification provision should be added to ENDA. This would make ENDA parallel to Title VII, which itself has a BFOQ.

Such a BFOQ provides a legislative religious freedom accommodation for those predictable instances when, for example, a non-religious counseling agency or a food-processing facility desires to serves customers who require the service or products to comport with certain religious standards. It also accommodates organizations that desire to particularly serve a gay clientele. Language such as this will serve the purpose:

New BFOQ language: Nothing in this Act shall be deemed to prohibit or prevent a covered entity from establishing or maintaining practices or policies based upon sexual orientation in those certain instances where sexual orientation is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.