Obama’s Order Against Antigay Discrimination Revives a Familiar Religious Freedom Fight

President Barack Obama speaks during the Democratic National Committee LGBT Gala at Gotham Hall on June 17 in New York Photograph by Mandel Ngan/AFP via Getty Images

After five years of hedging and rebuffing, the White House announced this week it would make good on a campaign promise with an executive order banning discrimination by federal contractors on the basis of sexual orientation or gender identity. But now lesbian, gay, bisexual, and transexual advocates who have long agitated for just such a move are warning the president not to undermine it by exempting religious groups.

A broad exemption, warns Lambda Legal senior counsel Jennifer Pizer, could “set a very damaging precedent.” Not only would it “permit discrimination,” she says, “it would be a broad message to the public that discrimination against LGBT people is not deserving of the same robust prohibition that is in place with respect to other kinds of discrimination.”

On the other side, however, are strong forces pushing for just such an exemption. Republican Senator Orrin Hatch of Utah urged in an e-mailed statement that any order “must include the same religious protections” in the Senate-passed Employment Non-Discrimination Act, so that “one of our nation’s fundamental freedoms—religious freedom—is still upheld.”

Asked about the potential for a religious exemption, a White House official said there were no details available yet on the executive order’s specifics.

ENDA passed the Senate last November before hitting a brick wall in the GOP-controlled House. The legislation would ban anti-LGBT workplace discrimination nearly everywhere, while the executive order would apply only to companies that choose to contract with the government. A business owner who objects, argues Freedom to Work President Tico Almeida, “has the right to opt out of federal contracts and then make whatever personal choices he sees fit.”

The promised executive order is only the latest flashpoint in a series of Obama-era showdowns over when and how religious exceptions should shield believers from new or old laws. In 2012, the Supreme Court ruled unanimously against the federal Equal Employment Opportunity Commission, finding that a “ministerial exception” protected a church-run elementary school accused of firing a teacher for asserting her rights under the Americans With Disabilities Act. This month, meanwhile, the high court will rule on whether Hobby Lobby’s religious freedom rights trump the Affordable Care Act’s contraception mandate.

Civil rights groups have appealed unsuccessfully to the Obama administration to repeal a “faith-based” amendment enacted by President George W. Bush that added a religious exception to Lyndon Johnson’s 1965 executive order on discrimination by contractors. The language, these advocates say, could potentially be construed as a loophole in the coming pro-LGBT executive order.

Meanwhile, ENDA’s current exemption for religious organizations—broader than that in the 1964 Civil Rights Act—has stirred controversy among LGBT groups. Adding equivalent language to an order covering contractors, whose revenue comes in part from LGBT taxpayers, would be “quite harmful,” argues Lambda Legal’s Pfizer.

“It’s not as if we are dealing with an unknown commodity in the White House,” says Human Rights Campaign Vice President Fred Sainz. He adds: “Do we have every reason to believe that they will protect LGBT workers? Absolutely.” Still, his group remains “anxious to see a draft” to ensure the proposed order “meets the needs of our community.”

In part the focus is holding the line against any move to allow “federally funded, taxpayer-supported hiring discrimination against LGBT people,” says Ian Thompson, a legal representative with the ACLU. “And to include an exemption in this executive order, that is exactly what you’d be doing.”

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