The Trump Administration has issued a
directive to protect the rights of faith-based federal contractors who have
religious objections to same-sex marriage and homosexuality.
Last week, the Department of Labor’s (DoL)
Office of Federal Contractor Compliance Programs (OFCCP) issued the directive to
“incorporate recent developments in the law regarding religion-exercising
organizations and individuals.” Specifically,
the directive cites three recent U.S. Supreme Court (SCOTUS) rulings and
executive orders on religious freedom issued by President Trump.
DoL suggests that
while discrimination based on sexual orientation and gender identity are still
not permitted under Executive Order 11246 (as amended by former President
Barack Obama in 2014), the 1st Amendment rights of companies and individuals
who have religious objections to homosexuality will be protected. “Section 202 of EO 11246 does not apply to ‘a
[g]overnment contractor or subcontractor that is a religious corporation,
association, educational institution, or society, with respect to the
employment of individuals of a particular religion to perform work connected
with the carrying on by such corporation, association, educational institution,
or society of its activities,’” the directive states.
The directive cites recent court
decisions that have “addressed the broad freedoms and anti-discrimination protections
that must be afforded religious-exercising organizations and individuals.” Among the cases cited is the SCOTUS’s ruling this
June in favor of Christian baker Jack Phillips, who was punished by the
Colorado state government for refusing to design a cake for a same-sex wedding in
2012. [Same-sex marriage was illegal in
Colorado at that time.] The directive
also cited last year’s SCOTUS ruling in favor of a Missouri church that was
denied funding for playground repairs made available through the state
government to other child care organizations. The church was denied the funding simply because
it’s a place of worship even though the funding would be used for secular
purposes. Additionally, the directive
cited the 2014 SCOTUS decision siding with the crafts store chain Hobby Lobby
in its case against the Obamacare contraceptive mandate case.
The new directive lays out
instructions for OFCCP staff to follow when enforcing the non-discrimination policy
and exemptions. The directive states
that staff “cannot act in a manner that passes judgment upon or presupposes the
illegitimacy of religious beliefs and practices.” Additionally, staff must be “neutral and
tolerant” of religious beliefs. OFCCP
staff also cannot “condition the availability of [opportunities] upon a
recipient’s willingness to surrender his [or her] religiously impelled status.” Additionally, faith-based groups must be
given a level playing field when competing for government contracts, the
directive states.
The directive comes after Trump moved
last year to reverse an Obama-era EO that required companies wanting to
contract with the federal government to comply with various federal laws and EOs.
Trump did not rescind another Obama order
that prohibits contractors from discriminating on the basis of sexual
orientation or gender identity.
The new directive has been applauded
by social conservatives. Among them is
Sen. James Lankford (OK-R) who is the co-chair of the Congressional Prayer Caucus
and a former Baptist youth leader. “In
America, people and organizations don’t have to check their faith at the door
in order to work with or for the federal government,” Lankford said in a
statement. “I applaud today’s changes
from the Department of Labor that ensure that faith-based organizations are
welcome partners with the government to serve the American people.”
Mat Staver, President of the
conservative religious freedom law group Liberty Counsel, said in a statement that
“people of faith should not have to set aside their sincerely held religious
beliefs to appease others.” “I commend
the Trump administration and the Department of Labor for taking a strong stand
in this new policy directive to protect the religious freedom of individuals
and organizations under federal law and the U.S. Constitution,” Staver said.
The new directive, however, is staunchly
opposed by LGBT activist groups that claim it opens the door for federal
contractors to discriminate against LGBT people in their hiring policies. “The directives coming out of the Department
of Labor today represent the latest move by the Trump-Pence administration to
turn the notion of religious liberty into a weapon of discrimination,” Sharon
Mc-Gowan, chief strategy officer for the LGBT legal group Lambda Legal, told
Bloomberg Law. “The notion that the
OFCCP needs to re-examine how it is enforcing non-discrimination mandates
against federal contractors is a ‘solution’ in search of a problem.”
Rev.
Dr. Kenneth L. Beale, Jr.
Chaplain
(Colonel-Ret), U.S. Army
Pastor, Ft. Snelling Memorial Chapel
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