Earlier Monday, President Obama issued an executive order barring federal contractors from what it describes as “discrimination” on the basis of sexual orientation and gender identity. Employers should respect the intrinsic dignity of all of their employees, but as I explain in greater detail at the Heritage Foundation’s Daily Signal, today’s executive order undermines our nation’s commitment to pluralism and religious liberty.
The order does not contain any religious-liberty protections — though it does leave in place an older federal regulation that permits religious organizations that favor employment of co-religionists to continue such practices. But there is no protection for organizations that hire based on mission — not on affiliation — to continue to do so. This in effect excludes taxpayers who hold conscientious beliefs about sexuality that run counter to Obama’s from being eligible for federal contracts funded with their own tax dollars:
Today’s order is problematic for four reasons, but there is at least one thing that can be done in response.
1. Today’s order undermines our nation’s commitment to reasonable pluralism and reasonable diversity, as it disregards the consciences and liberties of people of goodwill who happen not to share the government’s opinions about issues of sexuality. All Americans should be free to contract with the government without penalty because of their reasonable beliefs about morally contentious issues. The federal government should not use the tax code and government contracting to reshape civil society about controversial moral issues that have nothing to do with the federal contract at stake.
2. Today’s order treats conscientious judgments about behavior as if they were insidious acts of discrimination akin to racism or sexism. But sexual orientation and gender identity are not like race. Indeed, sexual orientation and gender identity are unclear, ambiguous terms. They can refer to voluntary behaviors as well as thoughts and inclinations, and it is reasonable for employers to make distinctions based on actions. By contrast, “race” and “sex” clearly refer to traits, and in the overwhelming majority of cases, these traits (unlike voluntary behaviors) do not affect fitness for any job.
3. Today’s executive order also does not contain a Bona Fide Occupational Qualification (BFOQ) exemption. BFOQs allow employers to make employment decisions so long as those decisions are honestly related to job qualifications. For example, Title VII of the Civil Rights Act contains a BFOQ that allows employers to take sex into account: hiring a female camp counselor at an all-girls sleep-away summer camp, for example, which might otherwise seem to be “sex discrimination.”
4. Today’s executive order is unnecessary. Voluntary market forces are already eliminating true discrimination, as making employment decisions based on non-relevant factors hurts one’s ability to compete. But the federal government should not penalize those contractors that do conscientiously judge sexual orientation or gender identity to be relevant to their mission and purpose.
5. In response to this executive order, Congress has an opportunity to protect religious liberty and the rights of conscience. Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting. This is the policy approach proposed by the Marriage and Religious Freedom Act (H.R. 3133, S. 1808).
Protecting religious liberty and the rights of conscience fosters a more diverse civil sphere. Indeed, tolerance is essential to promoting peaceful coexistence even amid disagreement.