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.'”

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