In the wake of the Supreme Court’s Hobby Lobby decision (and its granting of injunctive relief to Wheaton College), various faith-based organizations (FBOs) are stepping up to ask to be exempted from President Obama’s impending executive order barring federal contractors from discriminating against gays and lesbians. The FBOs think their religious disapproval of homosexuality should enable them to refuse to employ gays and lesbians to do jobs the government is paying them to do.
We’re in murky (and pretty unfamiliar) waters here, so it behooves us to try to think as clearly as we can about what such requests legally involve.
In the first place, bear in mind that Hobby Lobby is based on the requirement of the Religious Freedom Restoration Act (RFRA) that the federal government prove that it has a compelling interest in pursuing the challenged policy and that it is using the least restrictive means to enforce that policy. The decision assumes (and Justice Kennedy insists) that Obamacare’s contraception mandate is such a compelling interest; what the government failed to prove was the “least restrictive means” part.
The court’s position, then, is that the government has other ways of assuring that the women employed by Hobby Lobby and its for-profit ilk get the free contraceptive services to which they are entitled. And the court also asserts that principle with respect to Wheaton College (and, presumably, other religious non-profits). As the court stated, “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.” The only women not entitled to the coverage are those who work for churches and other purely religious bodies that object to providing it.
Now, in order to sustain a ban on employment discrimination against gays and lesbians in federal contracting against a religious free exercise claim, the government would have to prove that it has a compelling interest in advancing the ban and that it is doing so by the least restrictive means. It is inconceivable to me that Justice Kennedy, the critical pro-gay rights vote on the court, wouldn’t find such a compelling interest. In this regard, it’s worth recalling the 1983 Bob Jones decision, where the court held that a compelling state interest (in this case, ending racial discrimination) permitted the IRS to revoke a religious university’s tax exempt status.
As for the other prong of RFRA, there’s simply no less restrictive means of enforcing an employment discrimination ban other than, well, banning discrimination in employment. I suppose that an FBO might try to appeal to the recent Hosanna-Tabor decision, where the court unanimously sanctioned a “ministerial exception” under which churches are permitted to discriminate when employing those identified as ministers (in this case, a teacher in the church’s grade school). That would, however, require the court to approve the use of government funds to hire “ministers” — a bridge too far, in my view.
Certainly, such a ministerial exception would run afoul of the president’s executive order requiring FBOs that offer religious services to provide these “outside of programs that are supported with direct Federal financial assistance.” If you’re a “minister” you are by definition providing religious services, and this cannot be done in fulfillment of a government contract.
The Obama Administration has thus far managed to avoid directly addressing the question of whether FBOs can hire only their own co-religionists for government-funded programs — tacitly allowing the Bush-era permission to stand. We could soon have a case where a local Catholic Charities fires a Catholic employee in a government-funded program who marries her same-sex partner. Then the administration will finally have to stand up and be counted.