Last week, President Obama announced his plans to issue an executive order that would prohibit federal contractors from considering sexual orientation or gender identity in hiring decisions. The NAE met with White House officials to provide input, and leaders from a long list of organizations and denominations signed a letter to the president asking for robust religious freedom protections in any executive order.
Read the letter below or download the PDF version.
The Honorable Barack Obama
President of the United States of America
The White House
Washington, DC 20500
by email, c/o Melissa Rogers, Executive Director, White House Office of Faith-Based and Neighborhood Partnerships
Dear Mr. President:
As leaders and supporters of faith-based service organizations, we ask that you include explicit religious freedom protections in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors. We have a variety of views on the merits of such an executive order. However, we are united in asking that any such executive order be written in a way that protects the religious freedom of faith-based service providers. Any executive order that does not fully protect religious freedom will face widespread opposition and will further fragment our nation.
Our requests are grounded in the historical context of strong federal legal protections for religious organizations' hiring practices. Under the Civil Rights Act of 1964, as upheld by a unanimous Supreme Court,1religious organizations are free to consider religion when deciding who is most qualified to join their respective staffs. They are free under Title VII to maintain a conduct standard that reflects their religions' sincerely held beliefs, which include deep convictions about human sexuality.
Also by a unanimous vote, the Supreme Court recently reaffirmed that, even in the context of federal nondiscrimination laws, both the Free Exercise and Establishment Clauses protect the right of religious organizations to hire ministerial staff according to their religious beliefs and standards of conduct.2 The Court acknowledged that nondiscrimination laws are "undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission."3 While the courts have not precisely defined the scope of "ministerial staff," the Supreme Court's emphatic recognition of the constitutional protection that is due to the beliefs of religious groups and to their choices of key staff strongly supports our request for the language we propose below.
To its credit, your Administration has continued to respect this vital element of religious freedom by leaving intact the 2002 amendment to Executive Order 11246 that clarified that religious organizations that utilize their freedom under the religious exemption of Title VII of the 1964 Civil Rights Act are nonetheless eligible to be federal contractors or subcontractors.4 As a result, faith-based organizations that consider religion in their employment decisions continue to contract with the federal government. The vital services that religious organizations provide when acting as federal contractors include: 1) overseas relief and development services in partnership with USAID (which increasingly employs contracts as well as grants); 2) services on contract with the Bureau of Prisons; and 3) research, technical assistance, and other services via contracts and subcontracts with other federal departments and agencies. Many of these religious organizations maintain employee moral conduct standards along with their requirement that staff members agree with the organizations' religious commitments.
These organizations often are the best-qualified applicants for federal contracts or subcontracts. It would be counterproductive to bar them from offering their services to the federal government simply because of their legally protected religious convictions; it would be wrong to require them to violate those legally protected convictions in order to be eligible to receive federal contracts. Their exclusion from federal contracting would be diametrically opposed to the Administration's commitment to having "all hands on deck" in the fight against poverty and other dire social problems.
Specifically, we request that any LGBT executive order respect religious freedom by providing the following concrete protections for faith-based service organizations:
1. Exemption language for religious organizations similar to that recently adopted by the Senate. This is necessary so that the executive order does not have the effect of excluding faith-based organizations that exercise their constitutional and Title VII right to have religiously grounded employee belief and conduct requirements. In passing the Employment Non-Discrimination Act (S. 815), the Senate respected religious freedom and accommodated many religious organizations by exempting them from the proposed nondiscrimination requirements as follows (as adapted to reference the Executive Order):
This Executive Order shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)).5
2. A non-retaliation clause. A religious exemption will only be meaningful if organizations that claim it are not punished for asserting their rights. Therefore please include a non-retaliation provision, similar to that passed by the Senate in S.815:
A religious organization's exemption hereunder shall not result in any action by a federal agency, to penalize or withhold licenses, permits, certifications, accreditation, grants, guarantees, tax-exempt status, or any other benefits or exemptions from that organization, or to prohibit that organization's participation in programs or activities sponsored by that federal agency.
3. Purposes language. Please include in the executive order the purposes language adopted in ENDA by the Senate. The Senate clarified that its purpose in adopting ENDA was not only to eradicate wrongful employment discrimination but also:
"to reinforce the Nation's commitment to fairness and equal opportunity in the workplace consistent with the fundamental right of religious freedom."3
4. Construction language. Because the manner in which courts are to balance these rights is contested, we request the following language to underscore this Administration's intent to protect religious freedom in the context of any LGBT executive order:
Nothing in this Executive Order shall be evidence of or construed to establish a compelling government interest with respect to a claim under the First Amendment of the Constitution of the United States or under the Religious Freedom Restoration Act of 1993 (42 U.S.C. §2000bb et seq.).
Mr. President, you have spoken eloquently of your commitment to protecting religious liberty, our nation's first freedom. As you seek to promote the rights of LGBT persons, please also protect the rights of faith-based organizations that simply desire to utilize staffing practices consistent with their deep religious convictions as they partner with the federal government via contracting or subcontracting.
Thank you for considering our concerns and recommendations. We stand ready to discuss these suggestions with the appropriate member of your Administration.
To view the list of signatories, please download the PDF.
1 Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987).
2 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012).
3 Id. at 710.
4 The amendment was made in a section of Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations (Dec. 12, 2002).
5 The Employment Non-Discrimination Act of 2013 (S. 815), Sec. 6(a).
6 Id., Sec. 2(4).