Ari Ezra Waldman | Barack Obama | Discrimination | Law - Gay, LGBT | News

The President's Executive Order and Hobby Lobby: The Legal Connection

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BY ARI EZRA WALDMAN

President Obama has made good on another pro-equality policy promise. Today, he amended a standing executive order to prohibit federal contractors from discriminating on the basis of sexual orientation. Instead of creating a new nondiscrimination rule with an unnecessary and broad religious exemption, the President simply added the words “sexual orientation” and “gender identity” to the list of impermissible bases for discrimination. (Technically, more than these four words were added, but you get the idea.). The amendments also explicitly ban discrimination against federal employees on the basis of “gender identity.”

LGBT advocates have been clamoring for this kind of action for some time. Several years ago, many activists pushed Congress to pass the Employment Non-Discrimination Act (ENDA), a broad nondiscrimination law that would have covered more than just federal contractors. The law passed the Senate with every Democrat and only a handful of Republican votes, but had no future in the Republican-controlled House. Even worse, the draft bill included a broad religious exemption that has recently inspired several LGBT organizations, including the ACLU, the Gay & Lesbian Advocates and Defenders, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, to withdraw their support for the bill. Now, our progressive allies are loathe to touch it.

Knowing that Republican House Speaker John Boehner was never going to bring a nondiscrimination bill to the floor, many advocates demanded that the President sign an executive order instead. And from now on, if a company wants to receive a federal contract, it must sign a pledge that it does not discrimination against gays.

HobbylobbyThat is great news, but the legal landscape after the Supreme Court’s recent decision in Burwell v. Hobby Lobby makes this story more complicated. If a private, for-profit company now has permission to discriminate against women because its owners’ religion tells it to, one wonders if a similar company who wants a federal contract could use the same religious exemption to opt out of equal treatment of gays. AFTER THE JUMP, I discuss the executive order and the questions raised by Hobby Lobby.

CONTINUED, AFTER THE JUMP...

An executive order is a rule about how the executive branch operates. It could also be an interpretation of an act of Congress or a treaty, but it will always apply exclusively to how a part of the executive branch – which includes anything from the Army and Navy to the EPA to the Fish and Wildlife Service – goes about its business. And because it is only about the executive branch, it doesn’t require Congress’s approval.

Proposed bills take a majority of both legislative houses and an executive’s signature to become law; an executive order requires the stroke of the President’s pen and can be revoked just as easily. Yet both have the full force of law behind them.

Today’s amendments to Executive Orders 11246 and 11478 to include “sexual orientation” and “gender identity” among the list of impermissible bases for discrimination from federal contractors apply to any company that wishes to do business with the federal government and to federal employees themselves, who are now protected from gender identity discrimination. These amendments were needed because there has never been this kind of protection available before and analyses from the Labor Department and the Williams Institute have shown that antigay discrimination in employment is widespread.

Thankfully, the amendments came without any new religious exemption. Part of the reason so many LGBT advocates now oppose ENDA is because it would have given employers greater leeway to discriminate on the basis of sexual orientation and sexual identity than on race or religion or national origin or any of the other traditional impermissible bases.

SupremesBut this story isn’t over because the Supreme Court’s Hobby Lobby decision may conflict with the President’s EO. Hobby Lobby carved out another religious exemption to a federal law, in particular, a religious exemption to Obamacare. In that distasteful decision, the Court’s conservative majority held that a family-owned, for-profit company that has nothing to do with religion but happens to be run by religious people can refuse to comply with Obamacare’s contraception requirement if that contraception violated the owners’ religious beliefs. They can do this because the Religious Freedom Restoration Act (RFRA) requires that no federal law “substantially burden” a person’s religious exercise.

One day after issuing its Hobby Lobby decision, the Court ordered all lower courts to rehear all religious challenges to Obamacare in light of Hobby Lobby. This means that we have no idea how broad the decision will turn out to be. The implications could be limited: lower courts could ultimately decide that Hobby Lobby will only apply to family-owned companies and only to the few forms of contraception at issue in the case. But lower courts could also find that a religious exemption could carve out an enormous donut hole in a host of generally applicable laws, including employment discrimination protections.

I can imagine the following scenario unfolding: The federal government seeks bids on a contract and chooses the one from Apostles Corp., a web design company. Apostles Corp. is a private, for-profit company run by members of a conservative religious family who oppose homosexuality and refuse to hire any gay persons. The company declines to sign the federal government’s nondiscrimination pledge and is, therefore, denied the contract. Apostles sues in federal court on a theory similar to Hobby Lobby’s: the behavior mandated by EO 11478 violates Apostles’ rights as a “corporate person” under RFRA and Hobby Lobby, which guarantee that generally applicable laws cannot substantially burden a person’s or company’s religious freedom.

A broad interpretation of Hobby Lobby would expand that decision from contraception and health care and bloat religious “freedom” to allow religion to be used as a pretext to discriminate against anyone and anything a particular religion doesn’t like.

A narrow interpretation of Hobby Lobby would reject this challenge: Hobby Lobby may have said that RFRA applies to corporations (a dubious conclusion though it may be), but not only did the decision apply to health care and contraception, but the majority opinion explicitly stated that the ruling did not upend laws that prohibit discrimination in hiring.

The President’s EO amendments are necessary and welcome developments, but the insidious Hobby Lobby decision once again threatens our progress.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. I'm glad it's done, but will it make any real difference in anybody's life except in the rare egregious and obvious case of blatant discrimination? I doubt it.

    Posted by: Rick | Jul 21, 2014 11:22:03 AM


  2. Actually, the example given -- that a "religious company" might refuse to hire any gay people -- is a fairly easy case to deal with. First, it's extreme: yes, some companies still won't hire gay people, but that is now an extreme position for "for-profit" companies. Second, denying some a job -- as opposed to denying an employee some forms of contraception -- is a more extensive, economic-threatening form of discrimination that would require a huge extension of the Hobby Lobby rationale.

    What's much more likely, and you haven't mentioned, is a "religious corporation" that has a gay employee in a same-sex marriage and the corporation doesn't want to give health insurance benefits to the spouse of the employee because the corporation believes this is condoning same-sex marriage -- and the spouse can simply buy insurance on the health care exchange. Or the corporation won't allow a same-sex employee to take federal "family leave" to care for an ill spouse because that would be condoning same-sex marriage. These are the types of cases we're going to start to see as the result of Hobby Lobby -- gay employees remain employed by the bigoted employer, but they and their spouses are denied certain benefits (like the contraceptive situation in Hobby Lobby). It's very possible that this Supreme Court would allow such discrimination to take place in the name of "religious freedom".

    Only a Democratic President and a Democratic Senate stand in the way of the Republicans putting more bigots on the Supreme Court.

    Posted by: MiddleoftheRoader | Jul 21, 2014 11:48:48 AM


  3. This FEDERAL LAW will make the religious zealots, the conservative haters, the anti-gay and transgender bigots lose their already unstable minds.....YAHOOOOOO. YIPPPEEEE.
    Nice to see Obama finally step up!
    Announcing his decision on the Friday after an International plane tragedy is to be politically admired. No time/No energy for all the haters to weigh in or counter the Presidents decision.
    LOVE IT! Bravo.
    The numbers are all over the place but I read these new laws will DIRECTLY IMPACT 45 Million GLBT citizens and 24,000 businesses? Hopefully reporters will start reporting the real numbers since it's probably much, much higher. :) It's a big day forward towards GLBT equality in the United States.

    Posted by: SFshawn | Jul 21, 2014 11:48:51 AM


  4. Bad example in paragraph 5. Since 2004 the General Accounting Office is the General Accountability Office (clunky, I know). More to the point, it is part of the legislative branch (it answers to Congress, not the President) and is therefore specifically NOT covered by this or any other Executive Order.

    Posted by: Ed | Jul 21, 2014 12:33:51 PM


  5. Your gloss of the Hobby Lobby is unworthy of One L.

    I stopped reading at "right to discriminate against women".

    Posted by: Bill | Jul 21, 2014 12:50:26 PM


  6. As I understood it, the finding in the Hobby Lobby case was that the government had to find the least burdensome (on the employer's religious beliefs) means to enforce the compelling government interest of providing contraceptive coverage to employees. It didn't simply say that Hobby Lobby didn't have to obey the law, it said that the law had to permit a less restrictive mechanism such as having the insurance company or the government pay for the disputed contraceptive--a mechanism already in place in other contexts. I'd like to see the analysis address how an anti-gay corporation could avail itself of that sort of reasoning, as it is not entirely clear that it would apply.

    Posted by: Gene | Jul 21, 2014 1:17:48 PM


  7. From how I read this it still does not protect the gay Federal employee - just gay people employed through Government contract with third parties. Correct me if I'm wrong but you can still be fired for being gay in the U.S. Government. That, to me, is sick.

    Posted by: Mike Ryan | Jul 21, 2014 1:28:22 PM


  8. Mike Ryan, you are wrong. President Clinton had signed an executive order barring discrimination on the basis of sexual orientation by the federal government. Today, Obama added gender identity to that order. In addition, today Obama added sexual orientation and gender identity to the list of categories that federal contractors are forbidden from discriminating on the basis of.

    Posted by: Rob | Jul 21, 2014 1:53:34 PM


  9. Gene, precisely the point in my earlier comment.

    Posted by: MiddleoftheRoader | Jul 21, 2014 2:02:42 PM


  10. @ROB Pls check again. According to WikiPedia Clinton's Executive Order does not preclude any Federal Agency from firing a person for their sexual orientation. It states clearly:

    "The Executive Order states Administration policy but does not and cannot create any new enforcement rights (such as the ability to proceed before the Equal Employment Opportunity Commission). Those rights can be granted only by legislation passed by the Congress, such as the Employment Non-Discrimination Act."

    Thus, you can be fired from your Federal job for being gay. Your appeal of such termination goes before the Merit Systems Protection Board and so far those judge have granted the right to fire for homosexuality to the Federal agency and have not protected the gay employee.

    Gay Federal employees will only be protected from dismissal by Congress and Congress has refused to pass such legislation.

    Posted by: Mike Ryan | Jul 21, 2014 2:16:23 PM


  11. To my surprise as a Fed myself, Mike Ryan is correct.

    "The tenth Prohibited Personnel Practice (PPP) (5 U.S.C. § 2302(b)(10)) codified in 1978 bars discrimination in Federal personnel actions based on conduct that does not adversely affect job
    performance. This prohibition was first interpreted to bar sexual orientation discrimination in 1980 by the U.S. Office of Personnel Management (OPM). As this prohibition has been neither specifically expressed in statute nor affirmed in judicial decision, it has been subject to alternate interpretations. An executive order signed in 1998 affirmed the policy of non-discrimination based on sexual orientation in Federal employment. As this executive order was only a statement of policy, it provided no enforceable rights for employees who believed they had been discriminated against due to their sexual orientation."

    Posted by: Gene | Jul 21, 2014 2:55:27 PM


  12. Oops, I should have mentioned that the quote is from the US Merit Systems Protection Board.

    Posted by: Gene | Jul 21, 2014 2:58:41 PM


  13. While certainly a massive improvement over what we didn't have before, unless I misread, the executive order covers only contracts and does not cover cooperative agreements, which are an extremely common form of procurement for non-profit organizations (including universities and religious organizations) or grants. So there does remain a noticeable gap.

    Posted by: EdA | Jul 21, 2014 11:38:30 PM


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