Religious Leaders Press Obama for Exemption from Executive Order Barring Discrimination

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.”


  •' Eric Thurman says:

    I’m curious if the signers deliberately chose today, the 50th Anniversary of the Civil Rights Acts, to request freedom to discriminate or if they were simply ignorant of the irony.

  •' Jim Reed says:

    There are solutions to these problems. If we just get rid of the department of faith based services, the churches will be able to do what they want regarding hiring or offering services. It would work great, like it did before Bush started directing money to churches. We could also fix the hobby lobby problem by just having single payer health care. Then Hobby Lobby wouldn’t have to worry about supporting anything because they would not be involved. Other countries seem to know how to do these things. How did we get so messed up?

  •' Alencon says:

    I find it hard to believe, that anyone with an ounce of integrity can, with a straight face, ask for what amounts to permission to discriminate against someone that has never done anything wrong to them.

    Am I crazy or are they crazy?

  •' ernestmiller says:

    When will a closely-held for-profit religious corporation claim the right to discriminate in its hiring practices based on the World Vision memo? If you can give an exemption to religious non-profits, then shouldn’t there be an exemption for closely-held for-profit religious corporations? And why limit the World Vision memo to religion? Why shouldn’t religious-based sex and race discrimination also get an exemption?

  •' Halou says:

    I was unaware that the deliberate mass unemployment and homelessness of LGBT Americans was a “common good”.

    I guess that when LGBT Americans are cold and hungry and in need of a place to stay the church will ‘serve them’ with signs saying “No more room at the inn”. WWJD?

  •' MarkSebree says:

    There is a very simple principle here that the these religious right groups want to ignore. If you take the government’s money to do a job, you are (or should be) required to play by the government’s rules with regard to the use of that money. These rules are usually spelled out in the legal contract that they sign.

    Religious right groups, companies, NGOs, etc. want special privileges and exceptions for themselves alone which will (supposedly) make them more competitive that other groups that actually will play by the rules. Thinks like being able to discriminate in their hiring practices, discriminate in whom they provide their services to, proseltyze using the governments funds, and other illegal practices. And when they DON’T get the contract because they do not want to honor the regulations that they will be required to follow, they then raise a stink and call it unfair because someone else who will play by the rules got that contract.

  •' NelsonRobison says:

    This was bound to happen. Now we’re going to see private employers and closely held corporations demand the right to discriminate against LGBT, African-Americans, disabled, poor and elderly citizens of this nation. We are going to see a resurgence of discrimination based on “religious exemptions.” This because the Hobby Lobby decision opened up a “can of worms” by deciding that corporations have a protected right to decide what is an isn’t appropriate for their business, they’ve given the impetus to these businesses to discriminate against anyone and everyone that can be discriminated against.

  •' MarcoZandrini says:

    Looks like Justice Ginsburg is correct. I hear the floodgates banging open against the walls!!! As Christopher Hitchens (RIP) wrote: “Religion poisons everything.” You were so right Mr. Hitchens, so right.

  •' MarcoZandrini says:

    It’s called “religion.”

  •' Aravis Tarkheena says:

    Maybe the thing to do is to start refusing to serve evangelical Christians, in our own places of work, on the grounds that doing so “violates our conscience.”

  •' Shrdlu42 says:

          I’m waiting for “the other shoe to drop” in the form of this “dream” case. A religious based bigot offers a car for sale, with the tag line: Blacks, Catholics, Women, and Gays need not apply”. A Black, Catholic, Lesbian answers the ad, and when rejected sues for discrimination based on her race, religion, and sexual orientation. (This will, of course, involve their being a law forbidding discrimination on the latter basis.) It will be fun watching the “conservatives” on the Court try to explain how the government has a “compelling interest” in forbidding the first two forms of discrimination, but not the latter two!

          There is a rational case to be made for “accommodating” people’s personal religious beliefs, but demanding (as the “right-wing” does) that our laws and the government must turn somersaults every time someone says “I believe” is simply insane!

  •' Shrdlu42 says:

          No, it’s called “conservative” religion. Liberal religions don’t approve of this.

  •' Shrdlu42 says:

          Hopefully never. The Supreme Court indicated laws against discrimination would survive its decision. But we won’t know for sure until “that other shoe drops”.


  •' Shrdlu42 says:

          Half-right. “Conservative” religion poisons everything.

  •' NelsonRobison says:

    Well not necessarily. What has occurred already is that the religious corporations, the religious charities and others which are closely held corporations with “sincere religious beliefs,” which term is supplied by Hobby Lobby, have been lobbying the President for exemptions to the discrimination laws. They want to choose whom they can serve, whom they can hire without question because they have “sincere religious beliefs.”

    What isn’t surprising is though is the amount of time that it took for this lobbying to start. These corporations are seeking to end their participation in what is common practice for all Americans, non-discrimination of all for all. Now though they have a new weapon, Hobby Lobby, which gives to closely held corporations personhood rights which include according to SCOTUS religious exemptions from discrimination laws.

    One thing is clear though, that the closely held corporations will seek either through fiat or through the Federal Courts a decision to legitimatize their discrimination policies, It is not a question of if this will happen but when it will happen, based on Hobby Lobby.

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