A measure that passed late last Thursday night in the House Armed Services Committee is being called a stealth attack on LGBT rights and may be a harbinger of a new strategy in continued battles over religiously-based discrimination.
Republican Rep. Steve Russell added an amendment to the Defense appropriations bill that would require the government to grant religious organizations it contracts with “protections and exemptions” consistent with the Civil Rights Act and the Americans with Disabilities Act.
The only problem is, these laws don’t contain any LGBT anti-discrimination protections, so harmonizing federal contracting requirements with them could override President Obama’s 2014 executive order barring discrimination by federal contractors on either sexual orientation or gender identity, in effect creating a backdoor channel to implement stalled measures like the First Amendment Defense Act. FADA would prevent the government from “discriminating” against faith-based groups that discriminate against LGBT individuals and “ensure speech supporting natural marriage is not chilled.”
The Coalition Against Religious Discrimination, which is comprised of 42 groups including the Human Rights Campaign, the ACLU, Americans United for the Separation of Church and State, the American Humanist Association, the Baptist Joint Committee for Religious Liberty, Catholics for Choice, the Jewish Council for Public Affairs, and the United Methodist Church’s General Board of Church and Society, said Russell’s measure would “authorize taxpayer-funded discrimination in each and every federal contract and grant.”
Obama’s executive order was opposed by evangelical groups, but was most vehemently opposed by the U.S. Conference of Catholics Bishops, which called it “unprecedented and extreme.” This is understandable as the Catholic Church and related charities took in some $1.6 billion in federal contracts between 2012 and 2015, making it “one of the largest recipients of federal largesse.”
The bishops claimed that not allowing them to discriminate against LGBT people excluded them from federal contracts “on the basis of their religious beliefs.” Obama’s order, however, contained a religious exemption that allows faith-based groups to give preferential hiring treatment of members of their own faith and in employment decisions concerning “ministers.” What it didn’t do, however, is give them broad latitude to refuse to hire LGBT people or to fire them for making their sexual preference or gender identity known.
Since Obama signed the executive order, however, the Obergefell decision has moved the issue beyond a threat to the Catholic Church’s bottom line and into the broader cultural arena of signaling opposition to same-sex marriage and, more recently, the more open presence of transgender individuals in society. In this light, Russell’s move may just be the opening salvo in an endless battle to use the appropriations process or whatever legislative vehicle is available to carve-out protections for faith-based organizations.