Today over 130 civil rights, religious liberty, educational, feminist, and LGBT rights groups wrote a letter to President Obama, urging him to instruct the Department of Justice’s Office of Legal Counsel (OLC) to “review and reconsider” a 2007 legal memorandum, which invokes the 1993 Religious Freedom Restoration Act to permit faith-based federal contractors and grantees to circumvent legal prohibitions on discrimination in hiring.
The letter is the latest push in a seven-year effort to persuade Obama to reverse this Bush-era policy, put in place during the zealous days of Bush’s Office of Faith-Based Initiatives. Last year 90 organizations joined the call for reversing the memo, renewing calls that had begun shortly after Obama took office in 2009, and that have proved to be an exercise in futility.
But the issue has taken on greater urgency since the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby, interpreting RFRA to protect the right of corporations to refuse to cover contraception in their employee health plans. Opposition to the memo, also known as the World Vision Memo, has thus attracted a larger coalition. Organizations signing today’s letter include Americans United for the Separation of Church and State, the American Civil Liberties Union, a number of Christian Jewish, Muslim, Sikh, Hindu, secular, and atheist groups, as well as legal advocates, abortion rights advocates, and LGBT groups.
According to the letter, the World Vision Memo is based “on flawed legal analysis and wrongly asserts that RFRA is ‘reasonably construed to require’ a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.”
As I reported in April,the Rev. Barry Lynn, executive director of Americans United, has called Obama’s refusal to reverse the memo “the deepest stain on the civil rights position of the Obama administration.” Church-state separation and religious liberties advocates have said that because the Republican-controlled Congress is unlikely to take any action to amend RFRA post-Hobby Lobby, reversing the World Vision Memo is one action in Obama’s control to address overbroad interpretations of the statute, and to end religious-based discrimination subsidized by taxpayer dollars.
As Americans United notes, the White House recognizes the harm caused by overly broad interpretations of RFRA:
White House Press Secretary Josh Earnest expressed concern about a state RFRA bill because it “could reasonably be used to try to justify discriminating against somebody” which is “not consistent with our values as a country that we hold dear.” Yet, the president stands by the OLC Memo, which interprets RFRA to allow taxpayer-funded organizations to discriminate even where a statute forbids it.
The White House did not respond to a request for comment on the letter.
Obama’s executive order barring federal contractor discrimination based on sex and gender identity could come into direct conflict with the memo. Should the memo be used to trump that executive action, faith-based organizations could use it to discriminate in hiring, or to refuse to provide services, particularly if they object to those services, particularly reproductive health services. As I wrote in my April report:
Citing the World Vision Memo, the U.S. Conference of Catholic Bishops (USCCB), which along with other Catholic entities, has tens of millions of dollars worth of federal contracts each year, is objecting to new proposed regulations under an Executive Order, amended by President Obama in July 2014, to bar all federal contractors from discriminating on the basis of sex or gender identity.
These new regulations will apply across all government agencies and will affect a wide range of contracts the government has with faith-based providers. . . .
RFRA, the bishops claim, prohibits the application of these requirements to religious organizations contracting with the federal government if they have religious objections to abortion, contraception, or homosexuality.
The crux of criticism of the Supreme Court’s decision in Hobby Lobby is that RFRA should not be used to protect religious rights at the expense of third parties. As Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, has noted, the government “has a vital interest in preventing discrimination in taxpayer-funded jobs.” Many of the groups signing today’s letter have been pressing Obama for more than six years to uphold a campaign promise to end religious-based hiring discrimination by federal contractors. Is it now about time?