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LGBT Executive Order versus religious freedom
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President Obama signed on July 21, 2014, an Executive Order banning job discrimination on the bases of sexual orientation and gender identity by federal contractors and their subcontractors and vendors. The Executive Order does not apply to federal grants (nor to federal grants to state or local governments that are then awarded as contracts to private organizations).
Despite great pressure from many LGBT activists and some progressive religious leaders, President Obama left intact the religious hiring exemption that President Bush added in 2002 to the federal contracting rules. However, the President did not exempt religious organizations from the new prohibitions, as many religious leaders asked, including through a June 25 letter organized by the Institutional Religious Freedom Alliance.
The Department of Labor is to prepare regulations within 90 days; the new requirements will not come into effect until after those regulations are finalized. The full impact of the new nondiscrimination requirements will not be known until the final regulations have been issued. For example, the White House has said that if a contractor has several separate facilities, the rules will only apply to the facility that carries out the federal contract.
The religious hiring freedom, according to court precedents, protects more than just a decision by a religious organization to select only applicants of the same faith, but extends to faithful conduct. However, there will be disputes between religious employers and prospective or current employees about whether an employment decision is (legally) an exercise of religious decision-making or (illegally) a matter of discrimination on prohibited grounds, such as sexual orientation. (See the discussion of the court cases by Carl Esbeck.)
So, by not exempting religious organizations from the new prohibitions, the President has opened the door to litigation, and his action will cause faith-based organizations to consider whether federal contracting has now become too risky.
Thus the new Executive Order will complicate and likely decrease the federal government's partnerships with faith-based organizations to provide important services.
(Federal contracts are used mainly for the purchase of goods and services such as fighter planes and janitorial services, but contracts are also used to fund some overseas relief and development services, some services to federal prisoners, and to fund training, consulting, research, and technical assistance. Faith-based organizations are active in all of these areas.)
Religious organizations do have recourse to the Religious Freedom Restoration Act (RFRA) against government actions that they regard as imposing a substantial burden on their religious exercise. RFRA applies to government funding decisions, but it does not provide a general exemption from government regulations such as the new Executive Order.
The ENDA bill adopted by the Senate last November--a bill to ban job discrimination on the bases of sexual orientation and gender identity by all but the smallest employers--includes much stronger religious protections, including a provision fully exempting religious organizations from the new prohibitions. This bill is stalled in the House; unfortunately, many LGBT groups have now disavowed it because of its religious organization exemption.
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Adoption agency protection bill introduced
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On July 30, 2014, Senator Mike Enzi (R-WY) and Rep. Mike Kelly (R-PA) introduced the Child Welfare Provider Inclusion Act of 2014. The bill would prohibit the federal government, and any state government that receives federal child-welfare funding, from refusing or taking away a license or contract from a faith-based adoption or foster-care agency (or faith-based professional) because the agency has or will decline to provide some service that conflicts with the agency's "sincerely held religious beliefs or moral convictions."
The purpose of the bill is to forbid state governments from driving religious adoption and foster-care agencies out of business if those agencies stick to their religious principles and do not provide services to same-sex couples, gay persons, or unmarried heterosexuals. The Commonwealth of Virginia adopted a law with a similar protective effect in 2012.
The Enzi/Kelly federal bill might be seen as the "anti-Stark" bill. Several times in previous Congresses, then Rep. Pete Stark (D-CA) introduced the "Every Child Deserves a Family Act," which would have stripped federal funding from states that do not require every private adoption and foster-care agency to recruit families and place children without regard to sexual orientation, marital status, or gender identity. Stark's bill would have used federal funding to exclude many faith-based providers from providing these child-welfare services; the Enzi/Kelly bill seeks to use federal funding to ensure that states do not exclude those providers from serving children and families.
In that way, the Enzi/Stark bill is like the Church Amendment successfully promoted by Sen. Frank Church (D-ID) which, right after the US Supreme Court's Roe v. Wade decision in 1973, added this "string" to federal funding: any hospital or other federally funded program is prohibited from denying employment to a doctor or nurse because of the health professional's objection to participating in abortion or sterilization.
The new child-welfare bill attempts to protect the federal religious rights of organizations and professionals when the federal government or states use federal funds to support child-welfare services. A number of states have ignored the religious freedom rights of faith-based adoption and foster-care agencies, causing Catholic and evangelical agencies to stop those services in Illinois, Massachusetts, Washington DC, and California. Sometimes government funds have been involved; but the requirement to provide services that violate religious convictions has more commonly been applied as a condition for receiving a required license.
Predictably, the new Enzi/Kelly bill was promptly termed a "license to discriminate." The bill itself takes note of the fact that states license and contract with a wide variety of providers that have varied philosophies of service and that specialize in serving different segments of the community:
"Because governmental entities provide child welfare services through many charitable, religious, and private organizations, each with varying religious beliefs or moral convictions, and through diverse individuals with varying religious beliefs or moral convictions, the religiously impelled inability of some religious organizations or individuals to provide certain services will not have a material effect on a person's ability to access federally funded child welfare services."
In short, the public, including families willing to adopt or foster children, and the children themselves, hold a variety of beliefs about religion, sexual relationships, marriage, and family, so the government can best promote the common good by allowing the range of providers to offer their services. This, in fact, is what the Obama administration has acknowledged: witness the White House's National Adoption Day celebration in 2011, which featured a range of providers, both those that do place children with gay families and those that do not.
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Will ENDA's religious exemption vanish?
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In the wake of the US Supreme Court's Hobby Lobby decision (which had nothing to do with the issue) and thanks to President Obama's LGBT Executive Order on federal contracting (which did not include the needed religious organization exemption), many, though not all, LGBT advocacy groups have dropped their support for the Employment Nondiscrimination Act (ENDA) bill that the Senate adopted last November, demanding that the ENDA bill's religious organization exemption be removed. ENDA would apply to all but the smallest employers, whether or not they ever receive any government funds.
In fact, every ENDA bill that has been introduced has included a religious organization exemption so that the bill's new employment nondiscrimination requirements (sexual orientation, or that plus gender identity) do not apply to religious organizations. This exemption is important so that religious organizations can continue to maintain their faith-based standards of conduct for employees-not refusing to hire someone because of his or her sexual orientation, but rather insisting that all employees abide by the restriction of sexual activity to man-woman marriage--a common requirement in classical religious traditions.
Without such an exemption, decisions that, to the religious organization, are clearly legal religious employment decisions may be challenged by an aggrieved applicant or employee who claims that the decisions instead are a matter of illegal job discrimination on the basis of sexual orientation. A religious organization exemption prevents these disputes and keeps the government from having to decide about matters of religious doctrine and religious practice--matters it is incompetent to judge.
In response to the LGBT Executive Order and the statements against the Senate ENDA bill by the activist groups, the chief sponsor of the ENDA bill in the House, Rep. Jared Polis (D-CO) on July 22 proposed a resolution to strip the religious organization exemption from the Senate bill and to move the Senate bill to a House vote, despite the opposition of House Speaker John Boehner (R-OH).
It seems unlikely that there are enough Republican Representatives to join with Democrats to force action on the ENDA bill, with or without Rep. Polis' change, although a great deal of money and activists' energy is being spent to persuade more Republicans to support ENDA.
The Senate ENDA bill's religious protections are imperfect, yet this bill is far better than an ENDA bill that, like the LGBT Executive Order, would have no exemption for religious organizations. Here's a hard question for religious freedom advocates: should they push for the House to adopt the Senate ENDA bill because an ENDA with its protections is far better than a later ENDA without any religious organization exemption?
Not incidentally: states that have a sexual orientation nondiscrimination requirement that applies to private organizations include a religious exemption, according to the Center for American Progress!
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Federal government will propose alternative contraceptives "accommodation"
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The US Supreme Court recently ruled that Wheaton College need not submit to its health insurer EBSA Form 700. This is the form that tells the insurer (or third party administrators) that, for religious reasons, the College objects to covering abortifacients and insists that those drugs and devices be excluded from the plan--and that also then requires the insurer (or TPA) to turn around and offer to College's women employees exactly the coverage the College just said it rejected. Instead, the Court said, Wheaton College need only inform the government of its religious objection (which the government already knew via the College's lawsuit against the mandate). The government can then act to make certain that the insurer or TPA, which are already obligated to provide full access to the contraceptives, without charge to the employees, fulfill their responsibilities.
This is yet another dispute about how and whether the government will protect the religious freedom rights of religious nonprofit organizations. Recall that the government exempts churches from the mandate and had insisted that for-profit businesses were fully subject to it--the US Supreme Court in the Hobby Lobby case said instead that some for-profit businesses do not have to comply with the mandate. The government treats religious nonprofits as having intermediate religious rights: not exempt but instead, "accommodated." The form that Wheaton College objects to was part of the accommodation.
Now the government has told a court that it is devising another option for religious nonprofits, something along the lines of what the Court said should happen with Wheaton College: just give notification to the government; then it is the obligation of the government to ensure the full coverage of contraceptives.
Will religious nonprofits consider this to be a better alternative than the current accommodation? Will they insist on a full exemption-asking the government to find some way, wholly distinct from religious employers, to ensure the access to all contraceptives that the government says is a vital interest? Details coming. Stay tuned. |
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Anti-Hobby Lobby, anti-RFRA bill defeated
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After Hobby Lobby and Conestoga Woods won from the US Supreme Court, on June 30, relief from compliance with the contraceptives mandate, because the Court ruled that the companies and their owners had religious exercise rights, an effort was launched in Congress to undo the Court's ruling by requiring for-profit companies to cover contraceptives, no matter their conscience concerns. Rather than devise a way to ensure contraceptives coverage while respecting the religious rights of the employers, the Murray bill would have "solved" the problem by excluding for-profit companies from the free religious exercise protection provided by the Religious Freedom Restoration Act (RFRA)--the law the Court relied on in its Hobby Lobby and Conestoga Woods decisions.
But RFRA is our nation's premier law to protect the exercise of religion, a law passed with overwhelming support in and outside of Congress, and proudly signed into law by President Clinton in 1993. None of the several efforts that have been made to narrow the scope of its protection has ever gotten far in Congress.
Fortunately, neither did this bill. In a procedural vote, the Senate decided not to act on the anti-Hobby Lobby, anti-RFRA bill. That should be a great relief to all supporters of religious freedom in the United States. |
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Worth reading
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Archbishop Cordileone, Archbishop Lori, Archbishop Wenski, and Bishop Malone, "Hobby Lobby and ENDA," USCCBLOG, July 17, 2014:
"So what is really the matter with ENDA according to these groups [that are demanding that the religious organization exemption be removed]?
"They argue that ENDA in its current form would leave religious employers free to 'discriminate' based on their religious convictions. They argue that religious people cannot 'impose' their morality on others. This ignores the fact that these advocates themselves seek to impose their morality on religious people and runs directly counter to the religious diversity that modern societies aspire to.
"As Pope Francis wrote: 'A healthy pluralism...does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual's conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism' (Evangelii Gaudium no. 255).
"To dismiss concerns about religious freedom in a misguided attempt to address unjust discrimination in the workplace is not to advance justice and tolerance. Instead, it stands as an affront to basic human rights and the importance of religion in society."
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