The Loophole Religious Organizations May Try To Use To Discriminate Against LGBT Workers

President Obama signing the executive order protecting LGBT workers. CREDIT: AP PHOTO/JACQUELYN MARTIN
President Obama signing the executive order protecting LGBT workers. CREDIT: AP PHOTO/JACQUELYN MARTIN

President Obama followed through on his promise Monday morning to sign an executive order protecting the LGBT employees of all federal contractors — which employ 20 percent of the American workforce — from discrimination in the workplace. The order has been lauded for not including any exemptions that might have allowed religious organizations to continue discriminating on the basis of sexual orientation and gender identity, but it could put LGBT people of faith in a new challenging position to defend their intersecting identities.

The new executive order does leave intact a specific religious exemption created in an executive order by President George W. Bush. That exemption specifically allows faith-based organizations that contract with the federal government to make employment decisions on the basis of workers’ religious identity, mirroring a similar exemption found in the Civil Rights Act. For example, a Catholic-run organization could choose not to hire non-Catholic employees. The new order has no impact on the many religious organizations that received federal funding in the form of grants.

Hypothetically, this exemption is narrow and does not allow for any other forms of discrimination, but this has yet to be tested against LGBT protections. Unlike other protected classes like race and national origin, sexual orientation and gender identity are often invisible identities, and some religious traditions reject the existence of these identities altogether, framing them instead as sinful behaviors that violate religious tenets.

This framing is already apparent in conservative responses to the executive order. The Family Research Council’s Peter Sprigg described the order as “nothing less than viewpoint blackmail that bullies into silence every contractor and subcontractor who has moral objections to homosexual behavior.” He went on to claim that respecting a religious organization means allowing it to “require its employees to conduct their lives in a way consistent with the teachings of their faith is an organization.” Ryan T. Anderson of the Heritage Foundation more bluntly asserted that sexual orientation and gender identity are “not like race,” but are “unclear, ambiguous terms” that can refer to “voluntary behaviors as well as thoughts and inclinations.”

The Liberty Counsel’s Matt Barber went a step further in a piece called “The Coming Christian Revolt,” which has been crossposted on numerous conservative outlets, including Glenn Beck’s The Blaze, Charisma News, and Townhall. Barber claims that “Christians today face discrimination at unprecedented levels” but that nevertheless, “true Christians” will continue to refuse to “participate in, approve of, facilitate or encourage certain behaviors deemed by the Holy Scriptures to be immoral or sinful.” Chillingly promising “the certitude of civil disobedience” in response to laws that protect LGBT people, Barber calls upon Christians to “peacefully come together, lock arms, and redouble our resistance to evil.”

This response echoes a commitment made by many top religious conservatives back in 2009 called the Manhattan Declaration. That statement, which foreshadowed the religious liberty debates amplified this year by the Hobby Lobby case, included a promise not to comply with any law or policy that forced recognition of “immoral sexual partnerships” or participation in abortions.

If religious organizations that are bound by the executive order refuse to abide it, it could put LGBT people of faith in a position to have to justify their identities. For example, an evangelical church-run organization could try to claim that a lesbian employee is by default not a Christian and attempt to use the Bush-era exemption to justify firing her. This is despite the fact that there are many LGBT-affirming churches, including, for example, in the Baptist faith. The employee would be faced with defending both her religious identity and her sexual orientation simply to retain her job, which may not even have any responsibilities related to ministry work.

An administration official told Metro Weekly earlier this month that religion would not justify any employment decision “unless they fall within the ministerial exception.” Similarly, Maggie Garrett, Legislative Director for Americans United for Separation of Church and State, told ThinkProgress that while she does expect religious organizations will attempt religious justifications for LGBT firings, she thinks it’s a “losing” argument.

Nevertheless, this is untested territory, and not unprecedented behavior by religious organizations. As Thomas Reese notes at the National Catholic Reporter, many Catholic organizations take action against employees when their behavior is “public,” for example, a same-sex marriage. The new executive order suggests that a Catholic organization that wants to continue providing services to the federal government must not only retain employees in same-sex marriages, but also provide them equal marriage benefits as well. If Catholic Charities refuse, they may have to sacrifice the federal contracts altogether, but if they try fight the order on religious grounds, they might also have to then justify why employees who violate other Catholic tenets addressing divorce or birth control are not similarly refused employment.