Editorial: Trump’s new ‘religious freedom’ rule looks like a license to discriminate


Under the banner of religious liberty, the U.S. Labor Department is proposing a rule that could make it easier for organizations that receive federal contracts — including some for-profit corporations — to discriminate against job applicants on the basis of their gender or sexual orientation.

Of course, that’s not what the Trump administration says it’s doing. The Labor Department insists that the new rule is meant to clarify a longstanding “religious exemption” in an executive order that prohibits federal contractors from discriminating in hiring on the basis of race, creed, color, national origin, sex, religion and, since 2014, sexual orientation or gender identity.

That’s disingenuous. The proposed order would dramatically expand the exemption in two ways.

First, it would define a “religious corporation, association, educational institution, or society” eligible for the exemption in a sweeping way that extends beyond philanthropic institutions such as soup kitchens or refugee resettlement agencies. Also eligible for the exemption would be some “closely held” profit-making companies whose owners claim a religious mission. The order cites the 2014 decision in which the Supreme Court ruled that Hobby Lobby, a business owned by a Christian family, needn’t abide by the contraception mandate imposed under the Affordable Care Act. But it doesn’t follow from that ruling that such companies are entitled to a federal contract if they engage in discrimination.


Second, the rule says that an employer can reject not only applicants who aren’t members of the same denomination, but also those who fail to demonstrate “acceptance of or adherence to religious tenets as understood by the employing contractor.” That seems to suggest that employers with religious objections to same-sex marriage or wives working outside the home could refuse to hire a gay applicant or a married mother — and yet still would be eligible for a taxpayer-funded contract.

The Labor Department suggests that its proposed religious exemption, like the current one, couldn’t be used as a smokescreen to conceal discrimination rooted in other sorts of bias. But why make such subterfuge easier by loosening definitions? And what about contractors who sincerely believe that engaging in discrimination is God’s will? They’re free to believe that, but they mustn’t be allowed to act on that belief.

This proposed regulation makes little legal sense, but it does serve the political purpose of burnishing President Trump’s reputation with the Christian conservatives who have made him an improbable object of adulation. But bolstering his base will come at the cost of a further fracturing of what was once broad and bipartisan support for the idea that the government should accommodate sincere religious convictions. The country loses when “religious freedom” is viewed as a pretext for discrimination. This misguided rule makes it easier to equate the two.