WASHINGTON — On June 16, the White House announced that President Obama planned to sign an executive order that would prohibit companies and agencies that do business with the federal government from discriminating against employees on the basis of sexual orientation and gender identity.
The executive order could implement some of the provisions of the Employee Non-Discrimination Act (ENDA), a bill that passed the U.S. Senate last November but failed in the Republican-controlled House of Representatives.
Now, the nation’s Catholic bishops and officials from Church-affiliated institutions are waiting to review the substance of that executive order, which has not been signed and made public, as of press deadline.
Depending on what exemptions are granted for religious organizations, the policy could affect agencies like Catholic Charities and Catholic Relief Services, as well as Catholic universities and hospitals that receive federal funds.
The executive order will likely come soon, in the wake of the U.S. Supreme Court’s landmark Hobby Lobby decision, and the substance of the executive order will demonstrate whether the White House is prepared to embrace a new policy that could worsen the already tense relations between the administration and the U.S. bishops.
On June 30, the U.S. Supreme Court ruled in a 5-4 decision that the Religious Freedom Restoration Act protects closely held companies like Hobby Lobby and Conestoga Wood Specialties — whose owners oppose the use of abortion-inducing drugs — from compliance with the U.S. Department of Health and Human Services’ contraceptive mandate, which requires most private employers to provide such drugs in their health plans without cost sharing.
“One of the reasons I think the executive order didn’t come out … was that [the Obama administration] wanted to see how the Hobby Lobby case was resolved,” said Stephen Schneck, director of the Institute for Policy Research & Catholic Studies at The Catholic University of America.
“We would hope that sends some kind of message to the administration about general concerns for religious-conscience rights,” said Schneck, who co-chaired the Catholics for Obama campaign in 2012.
However, Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law, told the Register that he does not expect the Obama administration, given its track record on advocating for same-sex “marriage” and homosexual-friendly policies, will be influenced by the Hobby Lobby ruling to accommodate religious-liberty concerns in the executive order.
“The big problem across the board is that people who are hostile to the way the Church sees things are running the show,” said Destro, who added that he expects the executive order will prompt a new wave of litigation.
“We’re going to be in for an extended period of fighting over what the limits of religious liberty are and what the limits of the government’s ability are to force people to change their deeply held views,” Destro said.
Modeled on ENDA
Last year, the Senate-proposed ENDA legislation that failed in the House would have extended anti-discrimination protections for people with same-sex attraction and self-identified transgendered individuals who work for private businesses and public agencies.
Despite their previously stated concerns over ENDA, the U.S. Conference of Catholic Bishops (USCCB) withheld substantive comment on Obama’s promised executive order until the bishops know whether the directive provides sufficient, or any, religious-freedom protections.
“[W]hen the U.S. Senate passed legislation on the same topic, we raised detailed objections to that legislation, and we would refer interested parties to those resources to identify the applicable principles,” wrote Archbishop Salvatore Cordileone of San Francisco; Archbishop Thomas Wenski of Miami, the chairman of the bishops’ Committee on Domestic Justice and Human Development; Archbishop William Lori of Baltimore, the chairman of the bishops’ Ad Hoc Committee for Religious Liberty; and Archbishop John Nienstedt of Minneapolis, the chairman of the bishops’ Committee on Doctrine, in a June 20 joint public statement.
The bishops previously warned that ENDA threatened religious liberty and could undermine the institution of marriage. A letter sent last fall to the U.S. Senate — signed by three USCCB committee chairmen — said ENDA made no distinction between sexual conduct and sexual inclination, contained an inadequately narrow religious exemption and did not allow employers, in appropriate circumstances, to consider a job applicant’s sexual inclination.
During a November 2013 presentation at the USCCB general assembly in Baltimore, Archbishop Cordileone also observed, “ENDA-like laws have contributed to the erosion and redefinition of marriage at the state level.”
In their June 20 joint statement, the four archbishops said their commitment to uphold the dignity of “each and every human person” impelled them to “oppose unjust discrimination, to proclaim the truth about marriage and to protect religious freedom.”
“Therefore, we view with great concern the reported intention of the president of the United States to issue an executive order forbidding what the administration considers ‘discrimination’ based on ‘sexual orientation’ and ‘gender identity,’” the bishops wrote.
The promised executive order is one of several policies the Obama administration has approved in recent years that were welcomed by activists backing the redefinition of marriage to include same-sex unions and related goals.
In 2010, Obama signed legislation that ended the “Don’t Ask, Don’t Tell” policy in the military, and the administration is now looking to extend marriage benefits to same-sex couples following the Supreme Court’s 2013 decision that struck down part of the 1996 Defense of Marriage Act (DOMA).
On June 30, Obama announced that he would also sign an executive order to protect federal employees from discrimination based on so-called gender identity, which the American Psychological Association describes as “one’s sense of oneself as male, female or transgender.” Discrimination based on sexual orientation is already banned for federal employees.
The administration announced it was drafting its executive orders in the midst of the bishops’ annual “Fortnight for Freedom,” a campaign of prayer, fasting and education that ran through July 4. This year, the campaign focused on the freedom to serve the poor and vulnerable in accord with human dignity and the Church’s teachings.
The fortnight’s theme this year will prove to be especially urgent if the promised executive order on federal contractors hinders Catholic educational, medical and relief agencies from carrying out their missions. Similar policies forced Catholic Charities agencies in Boston, San Francisco and the state of Illinois to cancel their child-adoption programs rather than complying with laws that prohibited them from discriminating against same-sex couples seeking to adopt.
In 2011, the USCCB’s Office of Migration and Refugee Services lost a federal contract to care for human-trafficking victims because it refused to offer contraception and abortion counseling to its clients.
Destro pointed to the situations in Boston and San Francisco as possible harbingers of what the executive order could bring. Among the possible impacts, Destro added, could be requirements that federal contractors extend spousal benefits to same-sex couples just as they would to heterosexual couples.
“It raises other questions like: Do you have to cover in vitro fertilization for same-sex couples so they can have kids? Do you have to cover a sex-change operation?” Destro said. “Once it becomes an issue of ‘These are my rights,’ then rational discussion goes out the window.”
A hopeful sign for the Church is that the Obama White House has said it will listen to “all interested parties” before issuing its executive order for federal contractors.
On July 1, 14 prominent faith leaders sent a letter to the White House urging Obama to create a religious exemption, comparable to the exemption in the ENDA legislation, in his executive order for federal contractors.
“An executive order that does not include a religious exemption will significantly and substantively hamper the work of some religious organizations that are best equipped to serve in common purpose with the federal government. In a concrete way, religious organizations will lose financial funding that allows them to serve others in the national interest due to their organizational identity. When the capacity of religious organizations is limited, the common good suffers,” the letter writers said. The letter’s signatories include Schneck, Father Larry Snyder, the CEO of Catholic Charities USA, and Rick Warren, the senior pastor of Saddleback Church.
Also, the White House has said the executive order will apply to contracts, instead of grants, which is significant, because most of the money the federal government gives to agencies like Catholic Charities is in block grants.
Still, Schneck noted that federal contracts are often interpreted in such a manner that entire organizations are subject to a regulatory burden if any of their departments have a federal contract.
For example, The Catholic University of America’s Physics Department has a contract with the U.S. Department of Energy, which could make the entire university subject to the executive order, Schneck said.
“The choice would come down to either turning down those contracts or going along and conforming with them,” Schneck said, adding that he expects Catholic agencies, universities, hospitals and other organizations to respond by inserting clauses into individual employees’ contracts that would stipulate they could be fired if they were to engage in public conduct contrary to Church teachings, such as entering into a same-sex “marriage.” A handful of dioceses have begun using so-called morality clauses to fire unmarried Catholic school educators who become pregnant or who enter into same-sex relationships.
‘War Between Worldviews’
Destro said Obama’s executive order represents a public manifestation of a long-running debate within academic legal circles on discrimination. One side of the debate, Destro said, sees Christian beliefs about marriage and the family to be patriarchal, oppressive and discriminatory.
“You really have a war between worldviews,” said Destro, who speculates that the next wave of “non-discrimination” legislation could even include attempts to get rid of marriage altogether because it supposedly discriminates against single people.
In their June 20 statement, the bishops said they oppose unjust discrimination against “any person on any grounds.”
“We intend to review the details of the executive order carefully once it is available,” the bishops said, “in order to assess whether it serves the dignity of the human person and the common good.”
Brian Fraga writes from
Fall River, Massachusetts.