‘We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need,” President Obama warned Congress in January. “I’ve got a pen and I’ve got a phone.”
The president put his pen to use this week, signing an executive order that prohibits the federal government and federal contractors from discriminating in hiring based on “sexual orientation” and “gender identity.” The order implements for those employers what ENDA, the Employer Non-Discrimination Act, which passed the Senate last year but has been tabled by the House, would require of all employers if made law — but with the key difference that the order lacks the religious-liberty protection that the Senate Democrats included last year.
Equitable hiring is an admirable and worthwhile goal. Sensible employers will almost never consider sexual orientation or gender identity when making hiring decisions. Changing social attitudes and the pressure of market competition must be working to make such discrimination ever less of a pressing social problem. UCLA’s left-leaning Williams Institute reports that “86 percent of the top 50 federal contractors prohibited discrimination based on sexual orientation, and 61 percent prohibited discrimination based on gender identity.” The numbers are even higher among the top 50 Fortune 500 companies.
That context ought to make us more attentive to the obvious danger of Obama’s policies: that they are part of a campaign to place the might of the federal government against traditional moral views about sex — indeed, to place it behind the proposition that those views are the equivalent of racism.
That context — of using the government to favor one side of a cultural controversy over others — should also color our view of the order’s refusal to offer any protection for religiously affiliated federal contractors. That decision was made notwithstanding the petitions of several religious leaders, among them Saddleback Church pastor Rick Warren, who delivered the invocation at President Obama’s first inauguration, and Michael Wear, who spearheaded the president’s religious outreach efforts during the 2012 campaign. The order does leave intact a 2002 religious exemption signed by President George W. Bush (executive order 13279), which allows employers to favor employees of their own faith for “ministerial” positions, but the extent of that term has not been precisely defined. At present a number of religious organizations — World Vision, World Relief, and Catholic Charities, among them — receive federal grants under the protection of the Religious Freedom Restoration Act. But grants are not contracts (thus these organizations are not “federal contractors”), and as funds for activities such as overseas relief and development are increasingly contracted out, it is unclear whether these organizations will still be able to partner with the federal government.
The order addresses a small and shrinking problem of discrimination at a cost to religious liberty that it does not even attempt to minimize. It is one more way for the administration to show that it is “on the right side of history.” People who feel that way have a nasty habit of trampling over other considerations, and people.