Hobby Lobby Does Not Compel Anti-LGBT Religious Exemption, Legal Scholars Tell Obama

Over 50 legal scholars have signed a letter organized by the Columbia Law School Center for Gender and Sexuality Law Public Rights/Private Conscience Project, urging President Obama not to include a religious exemption in his planned executive order barring anti-LGBT discrimination in hiring by federal contractors.

Calling the proposed exemption “unprecedented” and “not required” under either the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act, the letter argues that the Supreme Court’s decision in Burwell v. Hobby Lobby, and its order in Wheaton College v. Burwell “do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors.”

Indeed, the letter goes on, “Exempting religious employers would harm LGBT employees and it would frustrate the Administration’s compelling interests in providing equal rights and protection against employment discrimination for LGBT people, particularly in taxpayer funded situations.”

The letter is in reaction to two letters written to the president by two groups of religious figures urging him to include a religious exemption. The first, sent June 25, was signed by over 100 conservative religious figures, and claimed that an executive order that does “not fully protect religious freedom will face widespread opposition and will further fragment our nation.” The second, sent after the Supreme Court’s decision in Hobby Lobby on July 1, was spearheaded by Obama’s 2012 faith outreach director and former Office of Faith-Based and Neighborhood Partnerships staffer Michael Wear. (Over 100 religious leaders take the same position as the legal scholars signing today’s letter and oppose an exemption, as I reported here.)

Today’s legal scholars’ letter takes issue with the legal analysis in the  June 25 letter, specifically its interpretation of religious exemptions under Title VII of the Civil Rights Act, which prohibits discrimination in employment. The accommodation under Title VII permits religious employers to hire only candidates of its own faith, but it does not, as the June 25 letter to Obama from religious leaders maintains, permit them to maintain a “conduct standard that reflects their religions’ sincerely held beliefs, which include deep convictions about human sexuality.”

The June 25 letter reflects a widely held view among centrist and conservative religious figures who have long pressed the Obama administration to maintain religious exemptions for faith-based contractors (in contravention of his campaign promise to end the practice). That view advocates an even broader exemption, to permit hiring based on moral and religious judgments about the candidate. But the law, today’s legal scholars’ letter states, “does not support this reading of the religious liberty rights of private employers.”

What’s more, the letter goes on, when spending taxpayer money, the government may require contractors to adhere to anti-discrimination laws without infringing on their religious freedom rights:

Religious contractors do not have a right to government contracts, and there is no burden on their religious exercise if they are unable or unwilling to comply with those requirements. When spending taxpayer dollars the government should be permitted to favor – and indeed, should favor – employers who do not discriminate on invidious grounds, including sexual orientation and gender identity.

The letter concludes, “Contrary to the suggestion of those supporting a license to discriminate in this context, it is the creation of a hierarchy of rights and an exclusion of LGBT individuals from the full protection of the law that would ‘fragment our nation.’”

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email

  • Jim Reed

    This sounds like the political fracture in Christianity that we have been waiting over 30 years for.

  • Chemechie

    So the idea is that to avoid offending a new and militant group that is at most 3% of the population, instead a long established group that built America and is approximately half of the population will be offended instead?

  • Jim Reed

    That is a big step forward. Until now, they were kind of under the thumb of the smaller group, and we all paid the price.

  • Christopher

    The Hobby Lobby ruling does not require Obama to add the language but it sure does allow the contractors to sue to stop enforcement. Oh how I LOVED that Hobby Lobby ruling. Here come Religious exceptions from every conceivable law. I have been dancing in the street.

  • Shrdlu42

          Better read the ruling again. (And I doubt you did.) The “exception” only applies if either of the two following conditions exist:

    1) There is no “compelling government interest” in the law. (In this case there was.)

    2) There is no “less restrictive alternative” (on religious freedom) by which the government can fulfill that interest. (In this case such an alternative did exist.)

          So, if a law (such as taxes) fulfills such a purpose (and it obviously does) and there is no “less restrictive” way to fulfill that purpose (which the Court in this decision specifically says there was not), then there is no exemption.

          We won’t know for sure until “the other shoe drops”, but I wouldn’t start dancing just yet.

  • Shrdlu42

    Huh? That makes no sense at all. Could you clarify, please? What “groups” are you talking about, and how does “offending” them have anything to do with the Hobby Lobby decision, or this proposed executive order?

  • Shrdlu42

    Same response as to Chemechie.

  • Jim Reed

    I think 3% means the militant religious right. The 50% is the mass of Christians who just go with the flow, and have in many ways been under the thumb of the 3% because they don’t want to rock the boat and upset their brothers in Christ. As Christianity gets led farther and farther down the path of insanity, eventually they will have to stop supporting the crazy ones. Are we seeing the first signs of the crack here?

  • Jim ‘Prup’ Benton

    I have wondered if, in relation to this, or to other ‘religious exemptions’ such as for taxation, a three-tiered system could be implemented. The first tier would be specifically religious ceremonies and people. Thus, a religion would be exempt, except under very special circumstances, from any rules relating to the conduct of services, the people permitted to attend or conduct such services. Similarly, buildings used exclusively for such services, the incomes of specifically religious people such as ministers, imams, nuns, that was derived from such services, etc. would all be exempt from taxation.
    The second would be ‘religiously connected activities.’ This would be the tricky one, but would include religious schools, hospitals (perhaps), religious publishing houses and book stores, stores selling religious items and articles and owned by a church, etc. With these, I would argue there should be a division between intrinsically religious functions and employees to perform that function, and other functions. The line would be tricky, I’m not saying I could draw it, but, for example, in a school, teachers — whatever their subjects — would be considered as part of the religious function, janitors would not.
    Finally, and here we get to Hobby Lobby and why I would not accept it and hope that a SCOTUS in the near future will reverse it, I would place a for-profit business with no inherently religious function, even if owned by a religious organization or religiously devout owners, in an entirely separate category and give it no form of exemption from any regulation.
    I realize such a framework needs to be tweaked, but I think it would be a worthwhile place to start. And you?

  • BillStewart2012

    I assumed that Chemechie meant the opposite, that he/she’s outraged that to avoid upsetting the 3% of the population who are LGBT, we have to instead upset the long-established religious majority, who he/she presumes are homophobic enough not to want to have to deal with LGBT people but still want all the privileges of having a government treat them as corporations, who are Special People, my friends.

    And sorry, no, if you want the favor of being a corporation, you play by the government’s rules, which include being fair to everybody, including the people you don’t want to be fair to as well as to your friends. I’m pro-life, but I think the Supreme Court was wrong in the Hobby Lobby decision; if the case had been brought by a business that was a proprietorship or partnership instead of a corporation, it might have been different.

  • Jim Reed

    Thanks. I see that now. Still, the dividing line in the above article is not LGBT. The division is between those who want to discriminate and the new forming majority that opposes discrimination.

  • BillStewart2012

    Hope you’re right.