• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Towleroad Gay News

Gay Blog Towleroad: More than gay news | gay men

  • Travel
  • Sports
  • Law/Justice
  • Celebrities
  • Republicans
  • Madonna
  • Books
  • Men
  • Trans Rights
  • Royals
  • Monkeypox
  • ‘Gay Key West Uncovered’ Gets a Dose of Culture with the Island’s Galleries, Artists and Performers: LISTEN
  • Another Bad Romance: Lady Gaga & Michael Polansky ‘Hit A Wall’ After They Couldn’t Agree On Marriage & Babies
  • Florida moves to expand ban on sexual orientation, gender identity teaching

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

Ari Ezra Waldman July 21, 2014

1_eo_obama

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.

Topics: Actor, News, Religion More Posts About: Ari Ezra Waldman, Barack Obama, Barack Obama, discrimination, Law - Gay, LGBT, News

Related Posts
  • Ted Cruz claims Buttigieg running against Biden because his ‘cadence’ is ‘mimicking Barack Obama’
  • Explainer-Biden vs. Trump: What is the difference between the two classified records cases?
  • These are the ‘dumbest’ and ‘silliest’ things that ‘triggered’ far-right culture warriors in 2022: podcast
  • Another Bad Romance: Lady Gaga & Michael Polansky ‘Hit A Wall’ After They Couldn’t Agree On Marriage & Babies

    Another Bad Romance: Lady Gaga & Michael Polansky ‘Hit A Wall’ After They Couldn’t Agree On Marriage & Babies

    Published by Radar Online Mega Lady Gaga and her boyfriend Michael Polansky have gone their separate ways after two years of dating, RadarOnline.com has learned. “They broke up a few months ago,” blabbed a source. “It …Read More »
  • Florida moves to expand ban on sexual orientation, gender identity teaching

    Florida moves to expand ban on sexual orientation, gender identity teaching

    Published by Reuters By Sharon Bernstein (Reuters) – Florida is looking to expand its ban on teaching young children about sexual orientation and gender identity issues to include all students in its public schools under a …Read More »
  • Bisexual ‘Love Island’ Star Megan Barton Hanson Rakes In $1.5 Million On OnlyFans

    Bisexual ‘Love Island’ Star Megan Barton Hanson Rakes In $1.5 Million On OnlyFans

    Published by uInterview.com Former Love Island star Megan Barton Hanson has been minting money after uploading her sexy pictures on the OnlyFans platform. The 28-year-old former reality star has reportedly made over $1.5 million from posting …Read More »
  • Judge tosses suit from 36 congregations looking to leave Methodist church over LGBTQ

    Judge tosses suit from 36 congregations looking to leave Methodist church over LGBTQ

    Published by The Charlotte Observer CHARLOTTE, N.C. — A lawsuit by dozens of conservative United Methodist churches in western North Carolina wishing to break away from their governing body was thrown out of court Tuesday by …Read More »
Previous Post: « Chris Kluwe Outraged Over Light Punishment for Homophobic Vikings Coach, Still Plans to Sue: VIDEO
Next Post: Michael Sam Sits Down with Robin Roberts as He Prepares to Head to Training Camp: VIDEO »

Primary Sidebar

Adjacent News

  • Right-wing crowdfunding site hosts neo-Nazi project to create whites-only community in Maine

    Right-wing crowdfunding site hosts neo-Nazi project to create whites-only community in Maine

  • Lourdes Leon Insists She Is ‘Nothing Without My Family’ Months After Madonna Admits Motherhood Is ‘Exhausting’

    Lourdes Leon Insists She Is ‘Nothing Without My Family’ Months After Madonna Admits Motherhood Is ‘Exhausting’

  • QAnon follower charged in bizarre booby trap incident that injured salesman

    QAnon follower charged in bizarre booby trap incident that injured salesman

Good Trash: Going to Read It Somewhere, Y'know

  • RBG’s death set off a pattern of ‘distrust and discord’ that still plagues the Supreme Court today

    RBG’s death set off a pattern of ‘distrust and discord’ that still plagues the Supreme Court today

  • ‘Tiger King’ Joe Exotic Announces His Run For President From Behind Bars

    ‘Tiger King’ Joe Exotic Announces His Run For President From Behind Bars

  • Gwyneth Paltrow says rectal ozone therapy has been ‘very helpful’

    Gwyneth Paltrow says rectal ozone therapy has been ‘very helpful’

RSS Partner Links

  • An error has occurred, which probably means the feed is down. Try again later.

Most Recent

  • ‘Gay Key West Uncovered’ Gets a Dose of Culture with the Island’s Galleries, Artists and Performers: LISTEN

    ‘Gay Key West Uncovered’ Gets a Dose of Culture with the Island’s Galleries, Artists and Performers: LISTEN

  • Another Bad Romance: Lady Gaga & Michael Polansky ‘Hit A Wall’ After They Couldn’t Agree On Marriage & Babies

    Another Bad Romance: Lady Gaga & Michael Polansky ‘Hit A Wall’ After They Couldn’t Agree On Marriage & Babies

  • Florida moves to expand ban on sexual orientation, gender identity teaching

    Florida moves to expand ban on sexual orientation, gender identity teaching

  • Bisexual ‘Love Island’ Star Megan Barton Hanson Rakes In $1.5 Million On OnlyFans

    Bisexual ‘Love Island’ Star Megan Barton Hanson Rakes In $1.5 Million On OnlyFans

  • Judge tosses suit from 36 congregations looking to leave Methodist church over LGBTQ

    Judge tosses suit from 36 congregations looking to leave Methodist church over LGBTQ

  • Howard Stern Yearns For Comedian Jon Stewart To Run For President: ‘The Most Trusted Newsman In The Country’

    Howard Stern Yearns For Comedian Jon Stewart To Run For President: ‘The Most Trusted Newsman In The Country’

  • Arkansas enacts law restricting school bathroom use by transgender people

    Arkansas enacts law restricting school bathroom use by transgender people

  • Madonna Lets Loose On Horseback As She Mocks Haters With Remix Of Her Viral Grammys Speech: Watch

    Madonna Lets Loose On Horseback As She Mocks Haters With Remix Of Her Viral Grammys Speech: Watch

Most Commented

Social

Twitter @tlrd | Facebook | Instagram @tlrd

Footer

Copyright © 2023 · Log in

×