No, Obama’s LGBT Executive Order Doesn’t Undermine Pluralism and Religious Liberty


The freedom of religion is an important bedrock principle of American society. Many groups came to this land fleeing persecution of their religion in others. Some of those groups, like the Quakers, sought actual religious liberty and let others live how they choose. Others, like the Puritans, sought to shape American society in their theological image and impose their beliefs on others. Similarly, today many invocations of religious liberty are sincere requests to practice one’s faith privately without interference, while others are thinly veiled preferences for illegal discrimination. Today Ryan Anderson in the Daily Signal gives us an example of the latter in response to President Obama’s executive order adding sexual orientation and gender identity to federal contractor and employee nondiscrimination regulations.

First an explanation of what the executive order does. It adds sexual orientation and gender identity to the existing list of traits that companies who do work for the federal government cannot discriminate against in their employment practices (already on the list: race, color, religion, sex, national origin, disability, and veteran status). It also adds gender identity to the existing groups that the federal government itself cannot discriminate against in its own employment practices (President Clinton had already added sexual orientation to that list in 1998).

It maintains the existing religious allowance in the policy, which allows religious organizations to have a preference for hiring members of their faith. It makes sense for a Catholic church to be able to specifically hire Catholics. It doesn’t make sense for them to be able to fire or not hire certain classes of what they view as sinners.

It also doesn’t extend these requirements to every private employer in the country, only the federal government and companies that choose to pursue contracts with it. There is a simple way to avoid these new requirements if you don’t like them: Don’t work for the government. Especially ironic since if they were consistent most social conservatives who oppose these regulations should also oppose working for the federal government.

The Daily Signal piece is full of this kind of hypocrisy, among other faults.

Today President Barack Obama issued an executive order barring federal contractors from what it describes as “discrimination” on the basis of sexual orientation and gender identity.

Right out of the gate with the hilarity. “What it describes as ‘discrimination'”, complete with scare quotes? Really? What else would you call the ability to not hire and fire someone based on a specific attribute of their character, other than “discrimination”? That’s sort of the definition. Whether you think that discrimination is justified or not is entirely separate from its reality as discrimination.

Today’s executive order does not contain any religious liberty protections—though it does retain an older federal regulation that permits religious organizations that favor employment of co-religionists to continue such practices. But there is no protection for organizations that hire based on mission—not on affiliation—to continue to do so. This in effect excludes taxpayers who hold conscientious beliefs about sexuality that run counter to Obama’s from being eligible for federal contracts funded with their own tax dollars.

No, the new order does not add special exemptions for religious organizations to discriminate against the specific groups the order seeks to protect. Why in the world would it?

The last sentence here is where the disconnect between actual religious liberty and the freedom to discriminate becomes obvious. No one is denying anyone the ability to “hold conscientious beliefs about sexuality”. You’re perfectly free to be an anachronistic bigot if you like. But you are not free to use those beliefs to inflict harm on your fellow man. There are also lots of beliefs found in the Bible about slavery, arranged marriage, debt, people of other religions. In a civil society, you are similarly not allowed to use those beliefs against others.

The strange qualification of “beliefs about sexuality” as those “that run counter to Obama’s” is also telling. It’s not just the President who is ok with the gays. 59% of Americans view gay and lesbian relations as morally acceptable. Only 38% think homosexuality is morally wrong, a number statistically equivalent to those who oppose wearing animal fur. This isn’t “Obama’s” view, it’s the vast majority of the country’s.

In fact, 56% of Americans think banning discrimination against all LGBT Americans should be nationwide law (65% for just gays and lesbians). So trying to paint this type of even more limited action as radical simply won’t work.

Federal policy on government contracts should not seek to enforce monolithic liberal secularism. Today’s order undermines our nation’s commitment to reasonable pluralism and reasonable diversity.

It takes a special kind of courage to claim that a nondiscrimination order undermines “diversity”.

All citizens and the groups they form should be free to exist and participate in relevant government programs according to their reasonable beliefs.

They are. Again, they just can’t use those “reasonable” beliefs to discriminate against their fellow man. Unless your hiring practices also weed out “greedy” Christians, your desire to not associate with the “sexual immoral” isn’t Biblical anyway.

The federal government should not use the tax-code and government contracting to reshape civil society on controversial moral issues that have nothing to do with the federal contract at stake. All educational institutes, for example, that meet bona fide requirements about education (not sexuality) should be eligible for federal contracts if they fulfill the federal purpose of the program—education.

They’re not. Civil society’s views on this matter are already shaped. Your view is rapidly disappearing even without an executive order. This also implies that if an educational institute who just happens to not hire any women, but otherwise meets a federal contract’s requirements, should be allowed to do the work. No.

Previous guidelines for federal contractors prohibited discrimination on race, color, national origin, sex, and religious affiliation. These protections make sense, because race, color, national origin and sex are rarely—if ever—relevant to job performance, while religious affiliation is relevant for some religious organizations (and, as noted above, there were religious hiring exemptions). But sexual orientation and gender identity are not like race.

No one said they are “like race”, but science is increasingly clear that they are just as inherent and immutable, and thus should be protected from discrimination just as strongly.

Indeed, sexual orientation and gender identity are unclear, ambiguous terms. They can refer to voluntary behaviors as well as thoughts and inclinations, and it is reasonable for employers to make distinctions based on actions. By contrast, “race” and “sex” clearly refer to traits, and in the overwhelming majority of cases, these traits (unlike voluntary behaviors) do not affect fitness for any job.

This is simply incorrect. Sexual orientation and gender identity are traits. Sexual orientation is not sexual activity. There are many gay people who are not sexually active (especially among the clergy, ironically). There are many bisexuals in monogamous relationships with members of the opposite sex who don’t engage in the offending “voluntary behaviors” that the author apparently thinks “affect fitness” for a job.

Today’s executive order bans decisions based on moral views common to the Abrahamic faith traditions and to great thinkers from Plato to Kant as unjust discrimination. Whether by religion, reason, or experience, many people of goodwill believe that our bodies are an essential part of who we are. On this view, maleness and femaleness are not arbitrary constructs but objective ways of being human to be valued and affirmed, not rejected or altered. Thus, our sexual embodiment as male and female goes to the heart of what marriage is: a union of sexually complementary spouses. Today’s order deems such judgments irrational and unlawful.

Again, no it doesn’t. It only deems discrimination based on those judgments and beliefs to be unlawful. You’re free to feel transgendered people violate the laws of nature and anything else. But if you find out one works for you and is otherwise qualified for the job, you cannot fire that person…if you work for the federal government. If you feel it supremely important that you have the ability to discriminate against certain people, you may do so, as long as you just stop taking tax dollars. And again, as a social conservative, that shouldn’t be a problem, should it?

Today’s executive order also does not contain a Bona Fide Occupational Qualification (BFOQ) exemption. BFOQs, which other employment laws contain, allow employers to make employment decisions so long as those decisions are honestly related to job qualifications.

Nor did the previous executive orders protecting race, religion, sex, and everything else. Your problem, therefore, is not with this executive order, but with the previous ones going back to the 1960s.

Worst of all, today’s executive order is unnecessary. Voluntary market forces are already eliminating true discrimination, as making employment decisions based on non-relevant factors hurts one’s ability to compete.

So…no problem then?

Indeed, the liberal Williams Institute at UCLA, which conducts research on sexual orientation and gender identity law and public policy, reports that most federal contractors do not consider sexuality:

• As of May 2014, 86 percent of the top 50 federal contractors prohibited discrimination based on sexual orientation, and 61 percent prohibited discrimination based on gender identity.

• All but two (96 percent) of the top 50 Fortune 500 companies prohibited discrimination based on sexual orientation as of May 2014, and 70 percent prohibited discrimination based on gender identity.

But the federal government should not penalize those contractors that do conscientiously judge sexual orientation or gender identity to be relevant to their mission and purpose.

Yes, it should. Because it’s not. The only “mission and purpose” for which someone’s sexual orientation or gender identity would be relevant is an organization actively attempting to subvert those traits, and that mission and purpose is illegitimate and wouldn’t be contracting with the federal government anyway.

In response to this executive order, Congress has an opportunity to protect religious liberty and the rights of conscience. Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting.

But not if they just happen to be gay or have a different idea of gender than you? In that case, discriminate away! It bears repeating that the existing federal policy already includes religion as a protected trait. The federal government can’t discriminate against you based on your beliefs, but they can and should discriminate against you based on your own discriminating actions, even if those discriminating actions are based on religious beliefs.

It bears repeating: This executive order does not prohibit all employers from discriminating based on sexual orientation and gender identity. It only prevents the federal government from doing so. If you don’t want to abide by the policy, don’t ask the government for work.

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