Today, Donald Trump’s administration made another major move in its effort to walk back President Barack Obama’s contested legacy on nondiscrimination policies. Under a proposed new rule, faith-based groups that receive contracts from the Department of Labor would have a wider latitude to make hiring and firing decisions based on their religious teachings.
Progressive activists are already worried that this rule could be used to justify discrimination against LGBTQ people, women who are unmarried and pregnant, nonreligious people, and others. But faith groups have long argued that this kind of religious protection isn’t about discrimination at all: They say it would allow them to operate with religious integrity and continue to work with the government.
Across the executive branch, Trump-administration officials have steadily worked to expand these kinds of religious-freedom exemptions to federal nondiscrimination rules. In large part, this is a backlash to the Obama administration, which issued a number of discrimination-related rules and executive orders that many faith leaders saw as overly restrictive.
While administrative rulings may not be the sexiest part of governance, they can have an extraordinary effect on the hundreds of thousands of contractors that work with the federal government each year, along with their many thousands of employees. For some religious organizations, this new rule may come as a relief—a reprieve from potential lawsuits and a sign that the government values their partnership. But for at least a portion of employees, this new rule may instead represent instability, eliminating one more layer of legal protection at work.
According to the Department of Labor, 420,000 entities are currently registered as potential federal contractors. While this figure might overestimate the number of groups eligible to work with the Department of Labor, it illustrates how far-reaching the federal-contracting system is. Marketplace recently reported that 4.1 million people work as federal contractors; add in subcontractors, and that number gets far larger.
At least some portion of federal contracts are awarded to religious groups—roughly 2,000 across the federal government each year, according to recent congressional testimony. In its new proposed rule, the Department of Labor claims that some of these groups have been “reluctant to participate as federal contractors” because they’re unsure whether they would be protected from discrimination claims if they hired or fired people on religious grounds.
This rule is intended to clarify that any kind of religious group can make employment decisions according to its tenets, provided it doesn’t violate existing laws that ban discrimination based on religion, sex, national origin, and other qualities. Labor officials went out of their way to make clear that the new rule wouldn’t protect religious groups that discriminate based on race, citing the landmark Supreme Court decision Bob Jones University v. United States, which found that government interests outweigh supposed religious objections to racial integration and more.
What’s unclear is whether the new rule includes forms of discrimination that are currently in legal limbo. In 2014, Obama signed an executive order making it illegal for federal contractors to fire or refuse to hire people on the basis of sexual orientation or gender identity. The new proposed rule does not undo that executive order. Conspicuously, it does not address protections for LGBTQ people at all, even though that was a major area of concern for faith leaders back in 2014. Administration officials may be using that ambiguity to their advantage. This fall, the Supreme Court will consider whether the workplace protections provided under Title VII of the Civil Rights Act of 1964 cover discrimination based on gender identity. Until the Court weighs in, and perhaps even after that, the status of LGBTQ rights in federal nondiscrimination laws will remain unclear.
Progressive advocacy groups such as the American Civil Liberties Union are alarmed by the Trump administration’s proposed new rule. “This is taxpayer-funded discrimination in the name of religion,” the ACLU tweeted today. “Period.” Mara Keisling, the executive director of the National Center for Transgender Equality, said in a statement that “religious freedom must be a shield to protect the marginalized, not a sword to attack them.”
Among progressives, the concern is not just about this particular rule, but about the broader pattern that has emerged during Trump’s two and a half years in office. His administration has steadily worked to expand protections for religious groups, while scaling back protections for LGBTQ people, women seeking abortions, and others. The Department of Health and Human Services has led this charge, but across the administration, the mission is clear: Obama’s legacy on discrimination needs to be reversed.
There is good reason for this single-minded focus on administrative rulings and executive orders: Faced with a gridlocked Congress, much of Obama’s second term was dedicated to taking executive action on issues that were hopeless in the legislature—LGBTQ rights chief among them. This strategy was highly controversial. Many critics, including some of Obama’s natural allies, saw these initiatives as temporary solutions that would invite backlash and confusion. Arguably, that’s what’s happening now.
If Trump has made one thing clear, it’s that he will champion the religious voters who feel their liberties have been under relentless assault over the past decade. This new rule is one more sign that the president is keeping his promise to protect them—even if some employees must bear the costs.
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