Just one day after the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 14 faith leaders have written a letter to President Obama, asking him to include a religious exemption in his planned executive order barring hiring discrimination based on sexual orientation by federal contractors.
The Washington Post’s Michelle Boorstein reports that a group of faith leaders — including a former staffer on President Obama’s campaign and in his Office of Faith-Based and Neighborhood Partnerships — have asked Obama to create a religious exemption so that “an extension of protection for one group not come at the expense of faith communities whose religious identities and beliefs motivate them to serve those in need.”
Without a religious exemption, they contend, “this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom.”
The letter’s signatories include Joel Hunter, pastor of Northland Church who is known as a “spiritual advisor” to the president; Larry Snyder, CEO of Catholic Charities USA; Pastor Rick Warren; and Michael Wear, faith outreach director for Obama’s 2012 reelection campaign and a former staffer in the White House Office of Faith-Based and Neighborhood Partnerships.
A White House spokesman declined to address the letter, adding, “I don’t have any details to share about the specifics of an Executive Order.”
Obama, even when not legally required, has a history of offering churches and religious non-profits exemptions and accommodations from the law: for example, HHS granted churches an exemption and religious non-profits an accommodation when drafting the contraception coverage benefit.In Monday’s decision, the Court suggested the accommodation made available to religious non-profits might be applicable to closely-held corporations as well.
On the hiring issue, too, Obama has deferred to the demands of religious non-profits, reneging on a campaign promise to end hiring discrimination by religious non-profits that receive federal funding to carry out their charitable activities. That reversal came under pressure from religious leaders who wanted that exemption — rooted in a 2007 Bush administration Justice Department memo — to remain in place.
The memo, known as the World Vision Memo, interpreting RFRA, permits federally-funded religious organizations to receive an exemption from federal rules barring employment discrimination if they certify that they serve all clients regardless of religion, keep religious content separate from other program content, and that “the Applicant is a religious organization that sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of a particular religion is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise.”
The Coalition Against Religious Discrimination has been asking the Obama administration to reverse this policy since 2009. More recently, the Justice Department expanded the policy to apply to contractors under the Violence Against Women Act, notwithstanding a requirement in that law barring hiring discrimination by contractors.
A June 2014 letter to Attorney General Eric Holder, signed by over 90 religious, civil rights, women’s, and LGBT rights groups maintained, “RFRA should not be interpreted or employed as a tool for broadly overriding statutory protections against religious discrimination or to create a broad free exercise right to receive government grants without complying with applicable regulations that protect taxpayers.” (emphasis mine)
Legally speaking, it is not clear that Monday’s decision in Hobby Lobby requires such a provision. On my bloggingheads show, University of Miami Law School First Amendment expert Carolina Mala Corbin discussed the impact of Monday’s decision in the Hobby Lobby case on LGBT rights. “Assuming the federal government passes laws that ban discrimination on the basis of sexual orientation,” she said, ” you could very much expect to have corporations to object to these laws based on their religious beliefs.”
The question, Corbin added, is “whether the outcome would be the same…given that Justice Kennedy seems much more sympathetic to sexual orientation discrimination than he does toward sex discrimination.” Meaning, that is, that Justice Kennedy, the crucial swing vote, rejected religiously-based discrimination based on sexual orientation in United States v. Windsor, in striking down the Defense of Marriage Act, but sided with the majority in Burwell v. Hobby Lobby, finding that the Affordable Care Act’s contraception coverage requirement violates a corporation’s religious rights under the Religious Freedom Restoration Act.
The 14 faith leaders signing today’s letter to Obama do not appeal to the law, but rather to Obama’s own history of opposing same-sex marriage, and his stated goals in forming the Office of Faith-Based and Neighborhood Partnerships: “the particular faith that motivates each of us can promote a greater good for all of us. Instead of driving us apart, our varied beliefs can bring us together to feed the hungry and comfort the afflicted.”
Of course, refusing to include an exemption in the executive order won’t prevent these charities from continuing their charitable work; nor will it bar them from seeking federal funding if they comply with the law. As the Coalition Against Religious Discrimination has pointed out repeatedly, there is no constitutional right to a federal contract, no matter how good the contractor’s intentions are to serve the nation’s needy. As Obama himself said in his 2008 campaign speech, “If you get a federal grant, you can’t use that money to proselytize to the people you help, and you can’t discriminate against them – or against the people you hire – on the basis of their religion.”