Rules Are for Schmucks: More Loophole than Law

With much fanfare, President Obama signed an executive order on Monday to prohibit workplace discrimination against LGBTs, at least among federal contractors. When word first trickled out that the order would not have the same kind of religious exemption that undermines the Employment Non-Discrimination Act (ENDA) passed by the Senate last year, fans of uniform treatment under the law were heartened.

Unfortunately, when you read the fine print, there is still a powerful religious privilege in place. It’s worded differently than the exemption in the ENDA bill, but with some good lawyering it can get most religious outfits to exactly the same place.

Let’s start with a brief history. As far back as 1941, President Franklin D. Roosevelt issued an executive order banning employment discrimination by the nation’s defense contractors on the basis of “race, creed, color, or national origin.” It was just 442 words long. The order could be that short because it had no exceptions, not for religion or any other grounds. Roosevelt included no “conscience” exception, despite the fact that at the time many Protestant denominations were at the forefront of the effort to keep Jim Crow laws firmly in place, citing extensive biblical support for their position. This absence is perhaps explained by the fact that the leading proponent of the issue, A. Philip Randolph, was a prominent atheist and a signer of the Humanist Manifesto. Somehow, despite the lack of a religious exception, the U.S. defense industry managed to help us win World War II.

Two years later Roosevelt expanded the order to cover all federal contractors. Presidents Truman, Eisenhower, Kennedy, and Johnson tweaked it as well, always in the direction of more protection from employment discrimination, never adding any special exceptions for religion.

It wasn’t until 2002 that President George W. Bush took the first backward step, while installing his “faith-based initiative.” For the first time in sixty years, a federal contractor falling under the category of “religious corporation, association, educational institution, or society” was allowed to ignore the non-discrimination rules of the executive order “with respect to the employment of individuals of a particular religion to perform work.” So, if such an outfit wanted to say “No Muslims allowed,” that was perfectly ok. It couldn’t directly say “No atheists allowed” because atheism is not a religion, but it could get to the same point by saying “Only Christians, Jews, Muslims, Mormons, Hindus, Buddhists, Jains, Sikhs, or members of some other religion we’ve heard of are allowed.”

When the Senate passed ENDA last fall, it contained a sweeping exception for religious organizations—so sweeping, in fact, that one of the leading groups that has been pushing for ENDA for years has now officially withdrawn its support. While Obama was drafting his expansion of Roosevelt’s executive order to cover LGBTs, Democratic God experts like Michael Wear were urging him to plant a similar exception there. Obama didn’t do this—but he deliberately left intact the Bush loophole, which any good lawyer could drive a truck through.

Does an obedient Catholic condone homosexual activity? He does not. Doing so would be contrary to the explicit teaching of the church, and taking positions contrary to the explicit teaching of the church means that you are automatically excommunicated. That, you may recall, is exactly what happened to John Kerry in 2004, for stating publicly that he was personally opposed to abortion but supported a woman’s right to choose to have one.

I am rarely at a loss for words, but if a religion-related organization were to say “People who engage in homosexual acts don’t belong to any religion of which we approve, so they can’t work here,” I would not know how to respond. As Stanley Carlson-Thies, head of a pressure group that lobbies for religious special privileges, put it: “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” (emphasis added).

Arguing against a denomination’s decision that an individual was not a member of that denomination would be especially difficult in light of last year’s 7th Circuit decision in McCarthy v. Fuller, a case that hinged in part on whether the defendant was still a Catholic nun. According to the court: “[T]he Holy See has spoken, laying to rest any previous doubts: Fuller has not been a member of any Catholic religious order for more than thirty years. Period. The district judge has no authority to question that ruling. A jury has no authority to question it. We have no authority to question it.” If the courts lack the authority to question whether a person is a nun once the church has made a decision, they must also lack the authority to question whether a person is a Catholic at all, once the church has decided otherwise.

Obama may have inadvertently (or not) strengthened this argument. At Monday’s signing ceremony he proclaimed that “Millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are.” But both the Catholic Church and many Protestant denominations draw an important distinction: they claim that merely having same-sex attraction (i.e., “who they are”) is not a problem—it’s acting in line with that attraction (i.e., “anything they do”) that is the sin. So is having LGBT individuals lose jobs because of what “they do” ok in Obama’s eyes? When you add that to allowing religious organizations to fire people for being in the wrong religion or not exhibiting “faithful conduct,” then why all the fuss from the God industry? They lost a battle, but it seems to me they have won the war.

Remember, as well, that the new executive order applies only to government contracts, not to government grants. Religious organizations get far more money in the way of government grants than they do contracts, especially under the Bush/Obama faith-based initiative. Candidate Obama back in 2008 promised he would subject all recipients of faith-based grants to the hiring discrimination laws Bush had exempted them from; President Obama remained silent on the issue for two years, then publicly repudiated his campaign promise.

“Well, that’s all bad,” you’re thinking, “but at least it only applies to religious institutions, and not to the rest of the economy.” Not so fast: after the Supreme Court’s Hobby Lobby opinion, this is flimsy protection indeed. All a religiously-oriented, for-profit contractor will have to do to avoid the new executive order’s requirements will be to argue that the government’s interest in protecting LGBT Americans can’t be very strong if religious organizations are able to avoid it so easily. That is precisely the argument that prevailed in Burwell v. Hobby Lobby, alongside the decision that for-profits and non-profits are entitled to similar protection under the Religious Freedom Restoration Act (RFRA). Therefore, the “bend-over-backwards-to-appease-religion” requirement of RFRA should provide them an absolute shield.

Those of us who are simple-minded like simple rules—rules we can understand and that we know apply the same to everyone. The original 442-word Roosevelt order is a perfect example. “No employment discrimination based on sexual orientation, by anyone, ever, period” would be a nice follow-up to that.