Is Another Furor Over Religious Liberty Coming?

Pressure has been building for President Obama to sign an executive order prohibiting discrimination based on sexual orientation, gender identity, or gender expression by federal contractors, a move that might make the recent controversy over requiring religious institutions to offer contraception services look mild by comparison.

Metro Weekly recently reported on a strategy session in retiring Rep. Barney Frank’s office attended by representatives of the ACLU, Lambda Legal, and other gay and transgender equity advocacy organizations to organize a campaign for such an executive order. Shortly thereafter on Feb. 6 the San Francisco Chronicle’s web site published a press release from the Williams Institute at the UCLA law school calling for a gay rights executive order, and the New York Times published an OpEd, “What Obama Should Do About Workplace Discrimination,” by M.V. Lee Badgett, the Williams Institute’s research director.

Also on Feb. 6 the Washington Post editorial board called for “An order that would ensure a level field for gays in federal contracting.” Noting that “legislation to prohibit employment discrimination against gay people has been introduced in virtually every congressional session for the past two decades with no success,” the Post’s editors, endorsing the fears of gay rights advocates “that gay and transgender employees of federal contractors could be left vulnerable for years to come if a Republican takes the White House,” called on the president to bypass Congress and issue an executive order.

Such an executive order 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. Notre Dame, for example, like many Catholic universities, has a non-discrimination policy affirming that it “does not discriminate on the basis of race, color, national or ethnic origin, sex, disability, veteran status, or age.” Catholic University’s policy is virtually identical, as is Villanova’s non-discrimination policy. Some Catholic institutions, such as Georgetown and Fordham, do list sexual orientation among their protected categories, but then many non-Catholic ones, such as Baylor, which operates “within the Christian-oriented aims and ideals of Baptists,” do not. If 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.

Contraceptives May Be Mandated at Religious Colleges

Also waiting in the wings is a final version of a regulation that requires all student health plans to offer contraception services. If that is not changed, Inside Higher Ed points out, “the outcry from some religious colleges about having to offer free birth control to students will dwarf objections about the requirement to offer it to employees.” And that outcry might itself be dwarfed if a new executive order banning discrimination based on sexual orientation, etc., prohibited religious institutions from refusing to hire, say, individuals exhibiting extravagant versions of “gender expression” for their child care centers, such as this one at Notre Dame, or student counseling services.

The president’s desire to make religious institutions subject to his view of non-discrimination was signaled in December 2010 when he nominated Georgetown law professor Chai Feldblum to the EEOC, which I discussed here. In her nomination hearing now–Commissioner Feldblum attempted to distance herself from 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”–but she stood by her statement that where there is “a conflict between religious liberty and sexual liberty, … in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.”

If the Supreme Court had not put a stop to it, which it did unanimously weeks ago in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the EEOC would have enforced rules depriving religious organizations of the right to control their hiring and firing according to their religious beliefs and forcing them, in the words of a 2006 law review article by Commissioner Feldblum, to “adhere to a norm of non-discrimination on the basis of sexual orientation and gender identity.”

But is the “norm of non-discrimination” favored by President Obama and his appointees really a norm? The Supreme Court’s Hosanna-Tabor decision and the furor over the attempt to force Catholic hospitals and other institutions to provide free contraception pills and abortifacients to employees suggests not. In fact, as the still raging national debate over affirmative action clearly reveals, there is no “norm of non-discrimination” because there is no consensus at all on the meaning of “discrimination” itself, much less on the means of combating it.

What Is a Norm of Non-Discrimination, Exactly?

There is no “norm of non-discrimination,” in short, because there is no agreement on what “equality” requires. For some, it requires color- or sex-based preferential treatment to provide redress and “diversity”; for others, treating individuals “without regard” to protected characteristics. Even if it were possible to write an executive order with a seemingly air-tight, “construal”-proof prohibition against preferential treatment based on sexual orientation or persuasion, would gays and their supporters settle for being deprived of the preferential treatment liberals endorse and the government provides on the basis of race and ethnicity?

Regarding that non-existent norm of non-discrimination, it is both ironic and revealing that today’s supporters of a new non-discrimination executive order all cite, as the Washington Post editorial did, President Lyndon Johnson’s “executive order that obligates contractors to adopt non-discriminatory employment practices.” But what “norm” did that executive order embrace?

Executive Order 11246, signed by President Johnson in September 1965, repeated language from President Kennedy’s similar March 1961 Executive Order 10925. Both orders barred government contractors from discriminating on the basis of “race, color, religion, sex, or national origin” and required them to take “affirmative action” to ensure that all applicants and employees were treated “without regard to race, creed, color, or national origin.” [Emphasis added]

In the intervening years we’ve seen this language turned inside out and upside down. Where “affirmative action” originally meant ensuring that all applicants and employees were treated “without regard” to race and ethnicity, now it is seen as demanding precisely what it was originally designed to prevent–treating some better and others worse because of their race, ethnicity, etc.

Concern that the perennially unsuccessful Employment Non-Discrimination Act, on which any new executive order would be based, would require, or at least permit, affirmative action based on sexual orientation and gender identity has been a major obstacle to its passage. Supporters at one point tried to assuage this concern by adding language (quoted from Section 4(f) of S. 811, April 2011) barring preferential treatment to correct “an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation or gender identity employed by any employer,” but the attempt failed because opponents pointed out that preferential treatment for other reasons–such as to provide “diversity”–would still be allowed.

In a move unheralded beyond LGBT groups and publications, last April the Department of Labor added “gender identity” to its long list of protected categories that already included sex and sexual orientation. In what the DOL News Release described as a “robust” endorsement of this addition, Secretary of Labor Hilda Solis issued a statement affirming her dedication to “achieving and maintaining a high quality, diverse workforce at all organizational levels throughout the Department” and to “cultivat[ing] an environment that is diverse, inclusive, and free of discrimination.” A new presidential executive order would clearly enhance the movement already underway on campuses to provide “diversity”-justified affirmative action based on sexual orientation and gender identity.

Supporters of a new executive order recognize the obstacle posed by the fear that such an order would lead to affirmative action for gays. In a “CONFIDENTIAL–NOT FOR CIRCULATION” memo to Rep. Barney Frank obtained by Metro Weekly, the Center for American Progress and the Williams Institute noted that “Requiring numerical placement goals for sexual orientation and gender identity would communicate a strong commitment to diversity and a belief that LGBT workers should receive the same protection as women and people of color. However, doing so may be logistically, legally and politically problematic.” One way of finessing the problem, advocates suggest, is that “the executive order could omit any reference to any form of affirmative action based on sexual orientation or gender identity.”

They needn’t worry. As we’ve seen with the history of the 1964 Civil Rights Act and the affirmative action executive orders (and just been reminded here and here), courts have time and again demonstrated their ability to “construe” language to allow what it clearly prohibits. Thus it probably doesn’t matter whether a new executive order is slyly silent about affirmative action or even pretends to preclude it.

Finally, one can easily understand why the president and his allies are tempted to bypass Congress with their “politically problematic” agenda. Executive orders, after all, unlike pesky Congressional hearings, avoid the creation of potentially embarrassing legislative histories and thus do not create a record documenting the meaning of controversial but opaque terms. Refusal to follow the normal, constitutional process of passing a law by attempting to impose a non-existent “norm” by White House fiat, however, is a surefire recipe for divisive strife.

John S. Rosenberg

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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