Opinion | Civil Rights

Finally, religious groups may get fair shot at federal contracts

The views expressed by contributors are their own and not the view of The Hill

For years, confusion has attached to the question of whether religious organizations can contract with government as religious organizations without violating the law. Now, with some much-needed clarification, the United States Department of Labor (DOL) invites religious employers to compete for federal contracts on equal footing with their secular counterparts. 

This latest effort by the Trump administration, currently a proposed new rule, strengthens religious liberty by fully recognizing the protections of the law consistent with the president's Executive Order Promoting Free Speech and Religious Liberty

DOL, specifically its Office of Federal Contract Compliance Programs, is tasked with enforcing many of the civil rights protections of federal employment law, including those applying for the myriad federal contracts awarded annually. 

Religious organizations, like their secular counterparts, often provide essential services desirable to federal agencies. But, many are under the mistaken impression that religious organizations and government mix about as well as oil and water. 

Worse, some strict church-state separationists intentionally sow confusion by suggesting that it is unlawful - unconstitutional, even - for religious organizations to participate in federal contracts. Their unreasonable demands assert that religious organizations are disqualified from competing for a federal contract simply because they are religious. 

This flawed interpretation of the law has placed faith-based non-profits and others in the unenviable position of choosing between their deeply held religious convictions and the opportunity to enter into public-private partnership with government agencies to address a number of needs. The DOL proposes ending that government-imposed religious discrimination.

According to the proposed rule, federal law, along with multiple opinions by the U.S. Supreme Court, underscores a bedrock principle of civil rights law: Religious organizations are welcome to do business with the government as religious organizations. 

The Supreme Court of the United States recognized this in its 2017 opinion Trinity Lutheran v. Comer. Chief Justice John Roberts announced the court's disapproval of a Missouri program excluding a church from participation for no other reason than that it was a church. 

That "express discrimination," Roberts wrote, placed the religious organization in the untenable (and unconstitutional) position of having to "renounce its religious character in order to participate" in a program for which it was otherwise qualified. Such a coercive condition, he explained, "imposes a penalty on the free exercise of religion" and cannot be permitted.

DOL's proposed rule adopts Trinity Lutheran's core principle: Religious organizations are welcome to participate in government programs on equal footing with their secular counterparts. And, that's not all.

Previously, those who would bid for federal contracts might be afforded the freedom to hold to certain religious beliefs. But, should they actually make employment decisions according to those beliefs, they would be disqualified from federal contracts.  

This soft bigotry permitted bureaucrats to exclude religious organizations from the bidding process. In essence this means: You can believe whatever you want. But, you must agree with the ideological principles the government asserts in order to be a federal contractor-irrespective of whether government-imposed requirements violate your religious conscience.

Under the forthcoming DOL rule, religious organizations may not only have their beliefs, they can act upon them as well. That means they can select employees according to those religious beliefs, employing them (or not) according to the timeless tenets of their particular religious tradition. 

This recognizes the truth of the words by Roberts from 2012 in Hosanna-Tabor v. EEOC: "The interest of society in the enforcement of employment discrimination is 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."

Thankfully, it is also consistent with our nation's civil rights laws which have always provided clear exemptions for religious organizations to be religious in their employment decisions. Title IX, for instance, makes clear that it "shall not apply" to colleges and universities that are "controlled by a religious organization" and compliance would be incompatible with "the religious tenets of such organization." Title VII, too, goes beyond exempting religious employers and acknowledges in the federal statute the freedom of religious organizations to hire and fire according to the religious beliefs of the employer. 

DOL's proposed rule simply clarifies this and welcomes religious organizations to compete for federal contracts fully as religious organizations. 

Our commitment to freedom and the rule of law is strengthened by treating religious organizations equally and respectfully. Rules treating them as less than fully American should be replaced with common-sense solutions such as that proposed by the DOL. 

Jeremy Dys is Deputy general counsel to First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Follow Dys on Twitter @JeremyDys.

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