President Obama will sign an executive order barring federal contractors from discriminating against LGBTs … and his order will not exempt religious groups or employers. (More)

President Obama’s ENDA Order Will Have No (New) Religious Exemptions (Non-Cynical Saturday)

Yesterday the New York Times’ Julie Hirshfeld Davis reported that President Obama will sign the order on Monday:

President Obama plans to sign an executive order on Monday that protects gay, lesbian, bisexual and transgender employees from discrimination by companies that do federal government work, fulfilling a promise to a crucial Democratic constituency, White House officials said on Friday. But the directive will not exempt religious groups, as many of them had sought.

The executive order is patterned after the Employee Non-Discrimination Act that passed the Senate but remains blocked in the House.

No new religious exemptions …

But unlike the Senate ENDA bill, and despite a highly-publicized letter from some religious groups, the Times reports that President Obama’s order will include no exemptions for religious employers:

The issue of how to treat religious groups under any new order was a divisive one – among gays, lesbians, bisexuals, transgender people and religious leaders.

Some gay rights groups were angry that the Obama administration had accepted the inclusion of a religious exemption in anti-bias legislation that passed the Senate – but not the House – last fall, but others saw it as the political price of securing the Republican votes necessary to enact it.

Religious groups that have contracts with the federal government already have a limited exemption from existing anti-bias rules, based on a 2002 executive order by President George W. Bush. That directive allows them to factor their religious beliefs in their employment decisions.

… but existing exemptions remain

President Bush’s 2002 order amended a 1965 executive order by President Lyndon Johnson:

The cornerstone of the administration’s policies toward faith-based hiring was an executive order issued in December 2002, the “Equal Protection of the Laws for Faith-Based and Community Organizations.” This order amended a 1965 executive order by then-President Johnson that explicitly forbade the federal government from offering contracts to organizations that consider religion during the hiring process. President Bush’s order, while reaffirming the validity of the 1965 order as applied to secular organizations, eliminated its application to religious organizations.

On its face, President Bush’s order only allowed religious groups to consider applicants’ and employees’ religious affiliation, but his director of Faith-Based Initiatives hinted that might include sexual orientation as well:

James Towey, the director of the White House’s Office of Faith-Based Initiatives, said Mr. Bush’s action was consistent with federal law holding that religious groups are permitted to hire on the basis of religion. He said it would apply to groups that receive federal contracts of $10,000 or more, but not federal grants.

“The president simply feels that this executive order will clarify that these groups keep that civil right they have when they do federal contracting,” Mr. Towey told reporters this morning on Air Force One.

Asked whether Mr. Bush believed that religious groups would be able to discriminate based on characteristics like sexual orientation, a senior administration official said the president believes religion-based organizations “should be able to hire people that support their vision and mission” in a way consistent with previous court rulings on the issue.

The Times reports that President Obama’s order will not overturn President Bush’s:

The [2002] directive will not change under the new rule. Michael Wear, who led the religious outreach during Mr. Obama’s re-election campaign and had joined calls for a religious exemption, said he was “encouraged” by that move.

Mr. Wear said the new order provided “a path for the administration to both advance protections for L.G.B.T. Americans and continue to respect the religious identity of organizations serving our nation in partnership with the federal government.”

“The group’s beliefs about proper relations between men and women”

Conservatives are predictably outraged:

President Barack Obama is replaying his turnout-boosting 2012 contraception fight against Christian groups by staging a pre-election fight between Christian groups and advocates of new legal rights for gays.

He’s expected to sign a regulation on July 21 that would force religious groups that get federal contracts to give up federal funding if they don’t submit to progressives’ claim that homosexuality and heterosexuality are morally equivalent.

The regulation ensures a fight by banning federal contracts for groups that are reluctant to hire gay, lesbian and transgender people. But many religious group prefer to hire people whose personal lives exemplify the groups’ beliefs about proper relations between men and women.

Those paragraphs carry enough hyperbole to extinguish all life in the universe. (Yes, that’s a critique-in-kind.) Religious groups that receive federal contracts would not have to accept marriage equality or change their doctrines. They simply could not refuse employment solely because an applicant’s personal life fails to “exemplify the group’s beliefs about proper relations between men and women.”

Consider that quoted text carefully. Many religions teach that women should be submissive to men, both at home and in public. Some teach that women should not work outside the home. Some have strict rules for how women should dress, to the point of prohibiting jewelry and (or but?) “wearing clothes that affirm their … female identities.” Many religions forbid or limit birth control – no matter who pays for it – and have rules on what sex acts are allowed within marriage. Some teach that husbands have a duty to spank disobedient wives. Some even reject the law of marital rape.

All of those were links to Christian religions. We won’t even get started on Islamic rules for “proper relations between men and women.”

“An untenable morass of legal disputes”

Which of those “group’s belief about proper relations between men and women” should the law allow religious employers to require of their employees? None, as over 100 Christian, Jewish, Muslim, and interfaith organizations agreed:

In our democratic nation, we believe that public service – especially when it is directly supported by the federal government and our tax dollars – must be aligned with the Constitutional principle that all people deserve equal treatment under the law. Requiring all federal contractors to operate according to the same set of non-discriminatory hiring practices is more than fair; it is a critical safeguard that protects all parties. If contractors were allowed to selectively follow employment or other laws according to their religious beliefs, we would quickly create an untenable morass of legal disputes.

It’s one thing for Catholic Charities to ask if applicants are Catholic, as allowed by President Bush’s 2002 order. It’s something else again to ask about their sexual orientation, or whether they use birth control, or wear makeup when not at work, or allow their husbands to spank them for disobedience. Letting courts pick and choose which “group’s beliefs” are legitimate reasons to refuse employment would violate the First Amendment Establishment Clause.

Worse, as the 100 faith groups’ letter noted, the burden of selectively endorsing “group’s beliefs” would fall on those with the least clout:

Furthermore, if selective exemptions to the executive order were permitted, the people who would suffer most would be the people who always suffer most when discrimination is allowed: the individuals and communities that are already marginalized. Increasing the obstacles faced by those at the margins is precisely the opposite of what public service can and should do, and is precisely the opposite of the values we stand for as people of faith.

Government contracts are funded with taxes, including taxes paid by LGBTs and taxes paid by women who wear jewelry, use birth control, and get restraining orders if their husbands hit them. If a “group’s beliefs” require them to discriminate against such people then, starting Monday, those groups can’t get those tax dollars. That’s not tyranny. That’s basic fairness.


Happy Saturday!