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Executive Order in the works to ban LGBT job bias by federal contractors
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After months and months of strong pressure on the President, the White House announced today that he was directing his staff to prepare an Executive Order banning job discrimination on the bases of sexual orientation and gender identity by federal contractors. Going back to FDR and World War II, the job discrimination rules that apply to federal contractors have been proposed and applied by presidents, not Congress (Congress makes the job discrimination rules that apply to recipients of federal grants).
The big question is: will the Executive Order drive out faith-based organizations out of federal contracting? The federal government doesn't contract only for aircraft carriers, janitorial services, and IT expertise. It also contracts for research, consulting, and technical assistance, and, increasingly, for social services-particularly USAID and the Bureau of Prisons contract for social services. HHS recently proposed that more federal child care dollars spent by states should be switched from certificates (vouchers) to contracts and grants.
Three key religious freedom concerns:
1. Will the Executive Order include a religious-organization exemption so that faith-based organizations that contract with the federal government may retain employee conduct policies that require employee conduct consistent with historic religious sexuality norms? The Employment Nondiscrimination Act adopted by the Senate last November includes an exemption for religious organizations, and also a provision that the government may not retaliate against an organization that for religious reasons does not adopt LGBT equality practices (e.g., no loss of tax-exempt status, a license, or accreditation).
2. Will the Executive Order include language specifically stating the government's intent to protect both religious freedom and LGBT equality? The Executive Order should explicitly state that it does not elevate LGBT equality over the religious freedom that is due to religious individuals and organizations.
3. Will the Executive Order leave intact the religious hiring freedom? President George W. Bush in 2002 modified the ban on religious job discrimination by federal contractors so that faith-based organizations are not required to give up their freedom to consider religion in hiring as the price of becoming a federal contractor. President Obama left this modification intact when he issued his Executive Order in 2010 changing in some respects the principles that apply to the federal faith-based initiative. He should continue to leave the modification alone.
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Opponents of religious hiring (again) demand AG Holder to act
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Last week, 90 "religious, education, civil rights, labor, LGBT, women's, and health organizations" asked Attorney General Eric Holder to "review and withdraw" a 2007 legal memorandum from the Department of Justice's Office of Legal Counsel (OLC) This is the Nth time many of these groups have made the same request, alleging that the OLC memo illegally and unconstitutionally gives religious groups "blanket exemptions to non-discrimination laws."
In the memo, OLC interpreted the Religious Freedom Restoration Act to permit a faith-based organization that considers religion in hiring to take part in a federal program that bans religious (and other) job discrimination by participating organizations. The Obama administration recently applied this interpretation to the Violence Against Women Act (VAWA), to which Congress in 2013 attached a broad nondiscrimination requirement. The administration said that faith-based organizations that hire by religion are not barred from the program if they can truthfully certify that both religious hiring and participation in the program (to be able to offer expanded services) are religiously important to them.
To the signers of the last week's letter, all of this is nonsensical: religious hiring is suspect and surely it cannot be done on the federal government's dime. Surely RFRA cannot override congressional action to specifically add broad nondiscrimination language to a program like VAWA! But the OLC memo rightly observes that a ban on religious hiring by faith-based organizations that receive federal dollars can hardly be the "compelling interest" required to justify imposing a "substantial religious burden" on the faith-based groups--since Congress routinely designs federal funding programs without any job discrimination limits at all, and sometimes specifically states its desire to protect religious hiring by participating groups!
RFRA is the premier federal law to protect religious exercise, including the religious practices of faith-based organizations. Does it apply when a federal program includes a ban on religious hiring? Here's the answer of premier church-state expert Douglas Laycock:
"Does government substantially burden the exercise of religion, within the meaning of RFRA, when it offers monetary grants on condition that a religious organization abandon one of its religious practices? Yes, it does. Such a conditional offer of funding forces the religious organization either to abandon its religious exercise in order to fund its program, or to forfeit potential funding in order to maintain its religious exercise. As the Supreme Court has long recognized, this amounts to a financial penalty on the exercise of religion."
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HHS contraceptives mandate: wholesale victory for Catholic employers
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A significant number of Catholic (as well as Protestant) businesses and religious nonprofit organizations have sued the federal government to get relief from the mandate that their health plans must cover, or trigger coverage of, all FDA-approved contraceptive drugs, devices, and surgery, including those that have an abortifacient effect. The Becket Fund's HHS Mandate Information Central currently counts 100 cases--with the victories overwhelmingly on the side of the religious nonprofits and businesses. These are important victories, and yet most of them are on the retail level: one or two or a half-dozen organizations at a time winning relief.
There have been a few "wholesale" victories. The largest one until recently was the preliminary injunction won by Guidestone, a Southern Baptist benefits management company, which provides health insurance to nearly 200 evangelical organizations. In one court victory, all of Guidestone's member employers were given protection from the mandate.
On June 4th, an even larger set of religious employers won relief from the contraceptives mandate. The recently organized Catholic Benefits Association won a preliminary injunction against the mandate, protecting more than 450 Catholic nonprofits, businesses, and church organizations.
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Congressional testimony on US religious freedom
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On June 10th, the Constitution subcommittee of the House Judiciary Committee held a hearing on the state of religious freedom in American today. The witnesses were Kim Colby of the Christian Legal Society, Greg Baylor of Alliance Defending Freedom, Matt Staver of Liberty Counsel, and Rev. Barry Lynn of Americans United for the Separation of Church and State.
Religious freedom is under severe pressure in the United States. Tthe United States does remain the "land of the free." Religious freedom is often respected; restrictions, though very serious and growing, are nothing like those in most other countries. Yet that is no reason at all for complacency. Religious freedom, just as every other freedom, requires continual vigilance and support. Vigilance and vigorous defenses of religious freedom are particularly important as more and more influential people in our country adopt a secular world view that regards religion as damaging and dangerous.
In the hearing, Rev. Lynn sought to elevate nondiscrimination requirements over accommodations for the religious freedom of religious organizations. The other three witnesses noted a range of serious problems, particularly for the faith-ful operations of faith-based organizations.
You can watch the two videos of the hearing, and find links to the written testimony, here. |
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Worth reading
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* Michael Paulson, "Colleges and Evangelicals Collide on Bias Policy," New York Times, June 9, 2014.
"In a collision between religious freedom and antidiscrimination policies, the student group [at Bowdoin College], and its advisers, have refused to agree to the college's demand that any student, regardless of his or her religious beliefs, should be able to run for election as a leader of any group, including the Christian association.
"Similar conflicts are playing out on a handful of campuses around the country, driven by the universities' desire to rid their campuses of bias, particularly against gay men and lesbians, but also, in the eyes of evangelicals, fueled by a discomfort in academia with conservative forms of Christianity. The universities have been emboldened to regulate religious groups by a Supreme Court ruling in 2010 that found it was constitutional for a public law school in California to deny recognition to a Christian student group that excluded gays. . . .
"Some institutions, including the University of Florida, the University of Houston, the University of Minnesota and the University of Texas, have opted to exempt religious groups from nondiscrimination policies, according to the Christian Legal Society. But evangelical groups have lost official status at Tufts University, the State University of New York at Buffalo and Rollins College in Florida, among others . . . ."
* Kevin Drum, "Campus Christian Groups Should Be Allowed to Remain Christian," Mother Jones, June 10, 2014. http://www.motherjones.com/kevin-drum/2014/06/campus-christian-groups-should-be-allowed-remain-christian
"[I]f it were up to me, I'd allow Jewish groups to remain Jewish and Christian groups to remain Christian if that's what they want to do. It's hard to see the harm."
H.T. to InterVarsity Christian Fellowship.
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