Bootstrapping an Interpretation into an Imperative

On July 21, 2014, President Obama signed an executive order amending two Equal Employment Opportunity clauses, including “gender identity” as a category of unlawful employment discrimination. (Read the full text of the order here.) Despite the petitions of many religious leaders, faith-based organizations, academics, and legal scholars, the order did not contain any references to religious freedom protections.

By: Stanley Carson-Thies

Before it was issued on July 21, President Obama’s executive order amending two Equal Employment Opportunity clauses faced conflicting views about its wisdom, and controversy about the measure has hardly ceased since its promulgation. One reason is that the actual regulations will not be issued for months. On a broader level, there is deep disagreement about how a sexual orientation nondiscrimination requirement ought to intersect with a religious organization’s right to consider religion when making staffing decisions. Indeed, there is disagreement about how the existing law regards that intersection.

There are disputes about what the law actually is. In his contribution to this blog, Carl Esbeck points out that the “religion” that a religious employer can consider “is not narrowly doctrinal or creedal but reaches beyond worship and denominations.” Marty Lederman’s post claims that the religious hiring exemption does not permit religious organizations to have standards of conduct that prohibit sexual relations between persons of the same sex. Similarly, Rose Saxe’s post says that, when the new executive order is in effect, “federal contractors will no longer be able to fire or refuse to hire LGBT people because of their gender identity or their sexual orientation—including because they are in same-sex relationships—regardless of the motivation for such discrimination.” Meanwhile, Douglas Laycock, in a piece posted by First Things entitled, “Neither Side Got What It Wanted,” says that a Catholic organization likely can claim that if it discharges an employee who marries his same-sex partner, it is exercising its right to make staffing decisions according to its religious convictions, rather than violating the prohibition against sexual orientation discrimination. 

That such respected and careful scholars differ sharply on this fundamental question of religiously-influenced hiring decisions testifies to the unsettled state of the law—and to the absence of a clear boundary line. The blurred lines are due, in part, to the rarely acknowledged lack of agreement about the meaning of sexual-orientation discrimination itself. (The lack of agreement is referenced in the U.S. Catholic Bishops’ press release on the LGBT Executive Order.) But the ontological disagreement about the relationship between inclination, status, and right conduct at the heart of this matter is beyond the government’s jurisdiction and competence to settle. 

Whatever the underlying reason, the absence of a clear line is one reason for the June 25 letter to President Obama that I organized, which asked for a religious organization exemption from the new prohibitions so that legitimate decisions made by religious employers would not be constantly second-guessed by federal contract officials charged with enforcing the executive order. Some 160 leaders involved with faith-based services simply asked the president to protect the right of these organizations to remain faithful in their missions and operations, including their staffing decisions. 

Here I raise three questions about the clear-cut world that is portrayed in Lederman and Saxe’s posts and assumed by the executive order.

(1) Did a self-evident principle require this executive order? If job discrimination based on sexual orientation were simply wrong, it would be appropriate, even necessary, for the president to forbid such discrimination by organizations that receive federal contracts. Yet federal employment law does not include sexual orientation as a protected category—recall that the many proposed Employment Nondiscrimination Act (ENDA) bills have never been adopted by Congress—so it is questionable to assert that the federal government must absolutely forbid such discrimination by contractors. 

Recall, too, that just two years ago, the Supreme Court unanimously held that religious freedom outweighs the application of federal anti-discrimination law in the context of religious staffing decisions for “ministerial” positions (EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School). The outlier is the idea that religious freedom merits no protection in the nondiscrimination context, not the idea that religious organizations should have the religious freedom to hire staff in line with their religious convictions.

(2) Who gets to decide which employees are “qualified”? The question of which standards may be used by religious organizations in making staffing decisions is not settled by saying that, of course, the federal government shouldn’t allow contractors to “arbitrarily exclude” from their workforce “an entire category of qualified and talented employees simply on the basis of a characteristic that has nothing whatsoever to do with their ability to do the work” (Lederman). Whether an employee reflects the religious values of a religious employer may have much to do with his or her suitability for a position. 

Workplaces are not simply collections of individuals, and “suitability” for a job requires more than a narrow ability to do the work. Consult all the companies and nonprofits that strive to create a positive and mission-supporting corporate culture. This broader understanding of qualifications and of the nature of the workplace in a religious organization was specifically noted when the US Supreme Court unanimously upheld religious hiring freedom in 1987 (Corporation of the Presiding Bishop v. Amos).

(3) Where is the dividing line between (forbidden) discrimination based on sexual orientation and (legitimate) decision-making based on religion? This issue arises not through ill-will or malice, but because neither sexual orientation nor religion are simply demographic characteristics. For religious staffing, what’s important to the employer and employee is compatibility of convictions, values, and conduct, not that someone can show an ID card with the right religion checked off. Sexual orientation also has to do with convictions, values, and conduct; that’s one reason why surveys return such inconsistent statistics on the size of the LGBT population. 

Lederman says, “It remains to be seen whether any potential contractors would have the audacity to argue that an employee is not ‘of’ the employer’s ‘particular religion’ just because that employee is gay, or is transgender, or has slept with or married someone of the same sex.” Yet it is common for religious employers to have sexual conduct codes as part of their religious staffing practices, thereby asserting that employees and prospective employees, of whatever orientation, are not religiously compatible if they are sexually active outside of a man-woman marriage. 

Surely, we should not authorize the Department of Labor to decide, contrary to a religious nonprofit’s religious teachings, that both candidate “Jane” and candidate “Sally” are appropriate hires because they both attend some variety of Presbyterian church, notwithstanding that one openly
engages in extramarital affairs and the other does not. Surely, the Department cannot rule that it is impermissible for a Catholic crisis pregnancy clinic to choose to hire nurse Jake, who affirms the Church’s pro-life teachings, while rejecting nurse Jack, who proudly states his agreement with the Catholics for Choice organization. If the government should keep its hands off a religious employer’s standards of conduct regarding affairs and abortion, why should it be allowed to penalize the same religious employer for its standards of conduct regarding homosexual conduct? All the standards reflect long-held religious beliefs about what sexual conduct is, and is not, religiously acceptable.

We can agree that, in general, an applicant’s sexual conduct should be irrelevant in staffing decisions without thereby having solved the critical question about the legitimate scope of religious employment decisions by religious organizations. Some urge that sexual orientation discrimination is clear-cut, just like racism; it is wrong, it must be made illegal, surely there cannot rightly be an exemption from the prohibition for religious organizations. But that certainty is misplaced. The “State-by-State Examination of Nondiscrimination Laws and Policies,” published in mid-2012 by the Center for American Progress Action Fund, shows that every state that applies a sexual orientation nondiscrimination requirement to private employers (as opposed to government) has a religious exemption. These exemptions are noted without any challenge; indeed, the report’s introduction says that it is important that the ENDA bills in Congress “include explicit exemptions for religious organizations and religiously affiliated entities . . . .” 

The Lederman-Saxe arguments are concrete evidence that Congress must include a religious organization exemption in any ENDA bill. Such a bill would apply a prohibition against sexual-orientation and gender-identity discrimination to all but small employers. The arguments in the Lederman-Saxe posts validate the widespread fears of religious employers that passage of ENDA will trump the freedom they need to consider employee sexual conduct when they make their religious staffing decisions. Without an exemption, they will constantly be at risk of an EEOC or court determination that their religiously grounded decisions were instead acts of illegal discrimination. Religious employers’ basic right to hire according to their religious beliefs will be secure only if Congress provides comprehensive religious freedom protections in ENDA. No Senator or Representative can now vote for a version of ENDA that lacks broad religious freedom protections and plausibly claim that he or she supports religious freedom and faith-based services. 

We are a diverse people, and our diversity extends to differing views about how to end wrongful discrimination and how to fully respect religious freedom. We cannot solve these differences by just stating that one’s own side is obviously right. And last month’s executive order’s implicit and unelaborated views about these matters cannot rightly be used to prove the disputed points that actually need to be defended.

Stanley Carlson-Thies is founder and president of the Institutional Religious Freedom Alliance, a nonpartisan think tank that promotes the church-state freedoms that enable faith-based organizations to make their best contributions to the common good.

This piece was originally authored on August 21, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affair.