Defense Authorization Bill needs to protect religious liberty

The House and Senate are deadlocked over the Russell Amendment to the defense authorization bill, and the President is threatening a veto if the Russell Amendment is included. Public debate has been hyperbolic and largely free of facts. What is this fight really about?

Executive Order 13672 forbids federal contractors to discriminate in employment on the basis of sexual orientation or gender identity. Implementing regulations require that all job advertisements state that applications will be considered without regard to sexual orientation or gender identity. An explicit exemption provides that these rules “shall not apply” to any not-for-profit religious organization “with respect to the employment of individuals of a particular religion.”

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This language has been part of our law since the Civil Rights Act of 1964. It allows religious organizations to preserve their religious identity — to hire employees that support their religious mission. It does not simply say that the law on religious discrimination does not apply; it says that the whole body of nondiscrimination law, including the new rules on sexual orientation and gender identity, “shall not apply” to religious non-profits hiring adherents of their faith.

But this language turned out to have an ambiguity. What if an employee at Catholic Charities — rank and file or Executive Director; the Executive Order makes no distinction — claims to be Catholic but flouts the Church’s teachings? What if he marries his same-sex partner, moonlights in an abortion clinic, and hasn’t been to Mass in twenty years? Does the employer just have to take his word for it that he’s a Catholic? That would make absolutely no sense. 

By the time of the Americans with Disabilities Act in 1990, Congress had discovered this ambiguity and addressed it directly: “a religious organization may require that all applicants and employees conform to the religious tenets of such organization.” But this sensible language applies only to the Disabilities Act, not to other statutes and regulations prohibiting employment discrimination.

The Russell Amendment says simply that not-for-profit religious organizations with government contracts get the protection of both the language from the Civil Rights Act — the right to hire persons of a particular religion — and the clarifying language of the Disabilities Act, that this includes adherence to the religion’s tenets.

The part of the Russell Amendment that references the Civil Rights Act language merely puts in a statute what is already explicitly in the Executive Order. All that is new is the Disabilities Act language, which makes the religious exemption meaningful instead of nonsensical.

This protection is confined to not-for-profit religious organizations. Neither for-profit organizations nor secular organizations have ever qualified or ever could. The broader but much less specific language of the Religious Freedom Restoration Act, which protected business owners in Hobby Lobby, is no part of the Russell Amendment and has nothing to do with it.

There are not that many religious organizations with government contracts, but there are some, and they do important work. They should not be forced to choose between abandoning their cooperation with government programs or abandoning their religious identities.

The exemption in the Executive Order and in the Russell Amendment, including the clarifying language from the Disabilities Act, merely gives religious organizations the same rights that political and policy organizations take for granted — the right to insist that their employees not undermine the organization’s fundamental commitments. It is entirely legal for the Democratic National Committee to insist that its employees support the Democratic Party and not campaign for Republicans (even if they claim to be nominal Democrats), and for environmental organizations with government contracts to insist that their employees support their agenda and not claim that climate change is a hoax (even if they claim to be environmentalists).

The LGBT community faces an uphill battle getting gay-rights legislation through Congress and red-state legislatures. It will not happen without religious exemptions. It is foolishly short-sighted for that community to interpret the religious exemption in the President’s Executive Order in a way that makes it illusory, and to bitterly resist congressional efforts to clarify.

We teach our children that America promises “liberty and justice for all.” “For all” means gay rights, marriage equality, and religious liberty for dissenters. The Executive Order and the Russell Amendment protect both sides. The Executive Order protects the LGBT community from discrimination by some 200,000 government contractors. Only a tiny fraction of those contractors are religious organizations with traditional teachings on sexual morality. The Russell Amendment would protect these organizations from having to advertise their willingness to hire and promote employees who flout those teachings.

The conference committee should retain the Russell Amendment, and the President should drop his veto threat.

Douglas Laycock is Professor of Law at the University of Virginia.


The views expressed by authors are their own and not the views of The Hill.