Obama’s End Run Around ENDA

There he goes again, bypassing the Constitution’s pesky requirement that laws must be passed by Congress, not promulgated by executive decree.

The Washington Post has just reported that President Obama will soon sign an executive order implementing all or most (the text is not yet available) of the Employment Non-Discrimination Act (ENDA), prohibiting discrimination by federal contractors based on sexual orientation, gender identity, or gender expression, that the Congress under both parties has steadfastly refused to pass in every session since it was first introduced in 1994.

Many colleges and most universities — certainly most research universities — are federal contractors and have elaborate procedures in place, such as this typical one at Pitt, to control the federal contracting process. Some, of course, are more heavily dependent on federal contracts than others. The Duke Office of Research Administration, for example, states: “As the National Institutes of Health (NIH) is the primary funder for Duke University’s School of Medicine, the focus of this information will reside on NIH contracts.”

No matter the size of their federal contracts, as I discussed here two years ago in an analysis of a proposed executive order that the administration then refused but now is about to sign, “[i]f institutions that do not protect sexual orientation, gender identity, and gender expression have, or hope to have, any government contracts, a gay rights executive order would presumably require them to begin doing so.”

The actual text of the order, how broadly or narrowly it is written, will of course be of crucial importance. Although it cites no source,Inside Higher Ed reports this morning (Tuesday) that the impending order will prohibit “federal contracts” from discriminating on the basis of sexual orientation or gender identity and thus “could affect employees at some colleges and universities that do business with the federal government.”

If, however, the order covers federal contractors, not “federal contracts,” which it would do if as many predict it will be similar to the coverage of Title VI of the Civil Rights Act, prohibiting discrimination by recipients of federal funds, its sweep will be far broader. A broad order, as I mentioned two years ago discussing the order then being considered, “would involve the same sort of threats to religious liberty that has been fueling a firestorm of opposition to the administration’s move to force religious organizations to provide contraception, sterilization, and abortifacient coverage to their employees.”

The scope of any religious exemption, if any, presumably will (or at least should) be influenced by the Supreme Court’s impending decision in the Hobby Lobby case. The Washington Post article linked above quotes ACLU attorney Rose Saxe stating that the Hobby Lobby decision “‘might certainly embolden demands for a broader exemption’ for religious contractors.” But, the article continued, “such employers make up a tiny fraction of federal contractors, and Saxe questioned whether they would obtain such an exception.”

Perhaps the best indication of the president’s views on the conflict between religious and sexual rights can be seen in hisappointment of Chai Feldblum to the Equal Opportunity Opportunity Commission, which I discussed here. Although she disavowed some of her more radical positions, such as calling for the legal recognition of “committed, loving households in which there is more than one conjugal partner” and “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households,” she continues to maintain that “sexual liberty” should trump religious liberty, quoted in the Weekly Standardstating that “I’m having a hard time coming up with any case in which religious liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.”