Obama's Executive Order + Religious Liberty

Obama's Executive Order + Religious Liberty

By Lorena O'Neil


Religious exemptions to the contraception mandate in Obamacare have stirred controversy. Will the fine print in Obama’s new executive order banning LGBT discrimination lead us down the same path?

By Lorena O'Neil

President Obama is about to start a fight, and it’s one he likely can see coming. 

This week, Obama announced he plans to sign an executive order banning federal contractors from discriminating against employees on the basis of their sexual orientation or gender identity. In 29 states, it’s still legal to fire or refuse to hire someone because they are LGBT, and the order would affect an estimated 14 million workers.

Seems simple enough, right? Ha.

The reason Obama is bringing this forward as an executive order in the first place is because the Employment Non-Discrimination Act, or ENDA, which would apply to nearly all employers, passed the Senate last year but has stalled in the House. The executive order is still being drafted, and one of the biggest questions is how Obama will handle religious exemptions. Many faith-based employers across the U.S. receive federal funds, including hospitals, educational institutions, adoption agencies and other social service charities.

…faith-based hospitals, educational institutions, adoption agencies and other social service charities.

This puts Obama in a tough position: If he doesn’t put in broad-enough religious exemptions, he will be accused of infringing on these organizations’ religious liberty; and if he does put them in, LGBT rights activists will say the order isn’t genuinely nondiscriminatory.

The issue is not unlike the Affordable Care Act’s contraception mandate, which created intense controversy among religious leaders who decried it as a way of forcing citizens to buy birth control against their will. In an attempt to safeguard religious liberty in the employment nondiscrimination bill ENDA, legislators added broad religious exemptions, causing some LGBT groups to withdraw their support for the bill.


As we wait for the exact language of Obama’s executive order, one thing is for sure: Someone is going to end up unhappy. LGBT rights activists argue that, religious or not, if you choose to do business with the federal government, you should play by the federal government’s rules — the same set of rules followed by every other federal contractor. LGBT activists and allies say religious exemptions would send a dangerous message to the public: The government doesn’t protect LGBT people to the same extent it protects other groups subject to discrimination.

Is it the government’s job to spur religious change, even if doing so forces people to commit what they perceive to be a sin?

On the other side of the coin are those requesting broad religious exemptions. Their argument is that religious organizations would be forced to hire LGBT people, which may go against their faith convictions and teachings. One of the nation’s biggest social service charities is Catholic Charities USA, which in 2010 distributed $4.7 billion to the poor. Sixty-two percent of that money came from local, state and federal government agencies. When state and city governments told Catholic Charities in 2006 that they would no longer receive funds if they didn’t allow adoptions for gay couples, the dioceses of Massachusetts and San Francisco shut down their adoption programs. Would other faith-based organizations act similarly if they felt they were being coerced into violating their beliefs? 

The issue is a nuanced one, and Obama has a particularly thorny history with the ins and outs of religious freedom. Theologically and culturally, faith-based organizations will have to make a call: Would withdrawing from social services really uphold their mission? Can they find creative solutions? By the same token, is it the government’s job to spur religious change, even if doing so forces people to commit what they perceive to be a sin?

The executive order will likely not be finalized until a decision is made in the Supreme Court’s Hobby Lobby case, which deals with religious exemptions in regards to for-profit corporations. The SCOTUS decision will probably influence how broad the order’s religious exemptions will be, and draw the battle lines for a church-state debate that still has two very polarized sides.