by James Wheeler
August 6, 2014
Others have written about the threats posed to religious liberty by the President’s Executive Order prohibiting federal contractors from discriminating on the basis of so-called “sexual orientation” or “gender identity” and by the White House’s refusal to provide a more robust religious liberty exception. However, the administration’s interpretation of the effect of the executive order is even more troubling. In fact, the administration’s interpretation could very well turn religious liberty on its head.
In a statement, the administration insisted that religious organizations can decide to hire only members of the same religion, but cannot refuse to hire someone “who is of [their] faith who happens to be LGBT.” What about those religions that would hold that a willfully practicing, unrepentant homosexual could not be a member of that religion? If such an individual claims to share the religion of a potential employer, must the employer hire the individual? The administration’s statement sure seems to suggest that. What’s more, Travis Weber, Director of FRC’s Center for Religious Liberty, asked the administration to clarify this important matter in an online Q & A session over a week ago and the administration has so far refused to do so — the White House instead responded to softball questions and platitudes about what a great job the administration is doing on a variety of topics, many irrelevant to the actual Executive Order.
The administration’s interpretation would upend one of the most fundamental principles in religious liberty law: The government cannot decide which religious doctrines are valid and which are not. But that is what the government would do if it forced a religious organization to employ a practicing homosexual in violation of the religious beliefs of the organization simply because the practicing homosexual “is of [its] faith.” The administration is telling millions of Americans that believe that homosexual behavior is a sin and that willful, unrepentant sins necessitate removing an individual from fellowship that those beliefs are unimportant. They are telling us that the government, and not we, will decide whether an individual who violates the tenants of our faith is still a member of our religion. That has been the very antithesis of religious liberty jurisprudence for decades, if not centuries. For the government to single out some beliefs for approbation and others for reprobation is to make government the arbiter of religious belief, something completely forbidden by the Constitution.
Because of these implications of the administration’s interpretation of the executive order, virtually every court that has ever considered religious exemptions in other non-discrimination laws has concluded that they must reach to employment decisions that are religiously motivated without considering whether the employer and employee share the same faith, even when the language of the exception appears limited to only decisions based on whether the employee belongs to the employer’s religion. These courts have recognized that to examine whether an individual shares the religion of an employer would require a court to examine the relative importance of beliefs within a religion (i.e. which beliefs about conduct, if violated, are enough to kick a person out) and would necessarily entangle courts in deciding questions of religious doctrine. Unfortunately, the administration is unwilling to acknowledge this problem; instead insisting that while it is permissible to not consider an individual a member of your religion for a multitude of reasons, if your reason is that individual’s unrepentant, willful homosexual practice, then your reason isn’t really religious enough to be protected. That turns religious liberty on its head, and was wisely forbidden in the Constitution.