Last month, President Obama issued an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. Equally notable is what the president didn't do: He refused to exempt religious organizations. That was the right call. Religious organizations have a constitutional right to disapprove of homosexuality, but if they are paying their employees with funds from a federal contract they must be bound by the same anti-discrimination provisions as other contractors.
But there is a potential loophole in Obama's order. It leaves in place an executive order issued by President George W. Bush in 2002 as part of his Faith-Based Initiative that allows religious social-service agencies to favor members of their own faith in hiring. (They may not, however, discriminate on the basis of religion in providing services.)
The intent of Bush's exemption was to assure an agency affiliated with one religious denomination that it could continue to employ members of that denomination. A drug and alcohol rehabilitation program offered by a Roman Catholic agency, for instance, could favor Catholics over Methodists or Jews. The problem is that an ingenious lawyer could interpret that provision to allow a Catholic agency to fire or refuse to hire not just non-Catholics but also "bad" Catholics — such as those who marry someone of the same gender.
The U.S. Conference of Catholic Bishops, which has called Obama's order "unprecedented and extreme," isn't making precisely that argument. But the bishops have stressed that the church simultaneously opposes "both unjust discrimination against those who experience a homosexual inclination and sexual conduct outside of marriage, which is the union of one man and one woman." One could argue that a Catholic agency that fired a "practicing homosexual" would be availing itself of the right to employ people of the same faith.
We don't think the Bush executive order justifies such an interpretation. The Labor Department, which is drawing up regulations to implement Obama's order, should follow the logic of federal courts that have ruled that laws against gender discrimination apply even when such discrimination is religiously motivated. The whole point of Obama's executive order is that discrimination against gays, lesbians and transgender people is just as odious as racial and gender discrimination. A backdoor exemption for religious contractors would dilute that powerful message.
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