While religious freedom can mean many different things to you personally, within the U.S. Constitution it means only two things: The government can’t promote one religion over another (or promote religion over the lack of religion, or vice versa) and you have the right to worship, or not, as you choose —the government can’t penalize you for your religious beliefs.
Last week, the Department of Labor proposed a rule that could potentially pit these two types of religious freedoms against one another. The rule would allow federal government contractors to make hiring and firing decisions based on religious beliefs. Currently, federal government contractors are prohibited from discriminating against people on the basis of race, sex, religion, national origin or disability — and under the Obama administration, sexual orientation and gender identity were added to that list. The proposed rule wouldn’t overturn that policy; instead, it would make it easier for contractors to get a religious exemption so they don’t have to follow it.
Many faith-based organizations have long argued that this type of protection will allow them to work with the government without worrying about compromising their religious integrity. In their view, the current policy penalizes them for their religious beliefs, denying them the opportunity to secure lucrative government contracts unless they put aside their principles.
Many civil rights-based groups are worried this rule amounts to “taxpayer-funded discrimination” and will be used by federal contractors to justify denying jobs to LGBTQ people, unmarried women, atheists and others. In their view, the new rule allows people who do the work of the government and get paid by the American people to promote one set of beliefs over another.
Private organizations are generally free to take religious beliefs into account when making business decisions. But when a private organization has a contract with the government, the issue grows more complicated. Stepping outside of hiring and firing decisions for a moment, consider the case of Miracle Hill Ministries, the largest foster care agency in South Carolina. Miracle Hill requires that all potential foster parents agree that the Bible is the only authoritative word of God. The agency, which is funded by and partners with South Carolina’s state government, made news this year for turning away a Catholic applicant. Miracle Hill’s spokeswoman defended this action by stating, “If faith-based child-placing agencies are not allowed to follow their doctrine, then we wouldn’t be faith based anymore. It would be taking the heart out of what we do best — help children find families within our own community.” Maybe so. But as the primary foster care agency in South Carolina, its decisions favoring one religion over another to determine who gets to be a foster parent in the state and how its foster children will be raised. Miracle Hill’s personal beliefs have an outsized impact on public policy.
The Department of Labor’s proposed rule raises similar concerns.
Ultimately, that’s what’s troubling about the Department of Labor’s proposed rule. The problem isn’t that it creates an exemption for religious contractors to circumvent certain anti-discrimination rules — that exemption has always existed. In the past, the exemption meant that nonprofit organizations like churches and charities that contracted with the government couldn’t be forced to hire employees outside of their religious community. But the proposed rule vastly expands the situations where it can apply. It would grant the exemption to any company or institution that has any kind of religious affiliation (such as Georgetown University, St. Jude’s Hospital or Goodwill). It would also allow them to do more than just prefer to hire people from a certain religious group, but also “condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.” As Vox’s Alexia Fernandez Campbell noted, “In other words, not only could a religious hospital that contracts with the government refuse to hire someone who is Muslim or Jewish, they could also refuse to hire someone in a same-sex marriage or fire someone who had sex before marriage.”
For a faith-based organization seeking a government contract, the rule change might seem like a blessing. But the greatly expanded scope of the exemption means that it has the potential to bolster one aspect of religious freedom (for some) while undermining another.
— Lata Nott is executive director of the First Amendment Center of the Freedom Forum Institute. Contact her via email at firstname.lastname@example.org, or follow her on Twitter at @LataNott.