Editorial:  Obama should say no to a religion-based exemption on hiring discrimination

Last month President Obama announced that he was drafting an executive order prohibiting federal contractors — which employ about 20% of the American workforce — from discriminating on the basis of sexual orientation or gender identity. But now the president is being beseeched to exempt religious employers from the order. He should decline the invitation.

The planned executive order is a response to the failure of the House to follow the Senate’s lead in approving the Employment Non-Discrimination Act, or ENDA, which bars discrimination against gay, lesbian and transgender people by public and private employers alike. Obama is following a well-established tradition of presidents who used federal contracting authority to compensate (to a limited extent) for Congress’ inaction on civil rights.

But in a letter to the president, several religious leaders — including mega-church pastor Rick Warren, who delivered the invocation at Obama’s first inauguration — have warned that an order that didn’t contain a religious exemption would threaten “the common good, national unity and religious freedom.” That is unholy hyperbole.

It’s doubtful that a large number of agreements with religious organizations would be affected by Obama’s order, because most federal transactions with such groups take the form of grants. Still, if a religious organization does choose to enter into a contract to provide services for the federal government, it shouldn’t be allowed to discriminate in hiring on the basis of sexual orientation or gender identity, any more than it should be allowed to engage in racial or gender discrimination.

The signers of the letter to Obama suggest that an exemption in the executive order be modeled on language in the Senate’s ENDA bill. That provision says ENDA wouldn’t apply to religious organizations that are free under the 1964 Civil Rights Act to discriminate in favor of employees of their own faith. But, as we noted in a previous editorial, the provision concedes too much. There is a huge difference between a church preferring to hire members of its own denomination and refusing to hire gay or transgender people.

Nor does the 1st Amendment support an exemption of the kind Warren and the others are seeking. A church that believes homosexual conduct is a sin has a constitutional right to insist that its clergy and religious teachers share that view and live by it. That doesn’t give the church a right to refuse to hire a gardener or cafeteria worker because he or she is gay.

That sort of discrimination is unjustified in any circumstance, but it’s exponentially more objectionable when it is subsidized by the taxpayers. Obama should say no to the request for a religious exemption.

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