A strange thing happened after the Supreme Court ruled on the Hobby Lobby birth-control case last week: Gay-rights organizations turned against legislation they once championed that would have outlawed workplace discrimination against gay people. They've also grown concerned about the executive order President Barack Obama has promised that would bar anti-gay employment practices by federal contractors.
How could a decision allowing companies to opt out of the Affordable Care Act's contraception requirement make any difference to gay rights? By illuminating the power of religious exemptions. If a woman can be denied contraception by an employer for religious reasons, can the employer also fire the woman if she is a lesbian? Can it deny spousal benefits if she's married to another woman?
Obama and, ultimately, Congress should take the Hobby Lobby warning seriously and make certain that gay people get the same workplace protections as the ones people are granted for their race, color, religion, sex or national origin -- with no special exceptions for employers' religious beliefs.
Only 21 states have made discrimination on the basis of sexual orientation illegal. A federal ban is needed, and that's what the Employment Non-Discrimination Act was intended to accomplish. (It passed the Senate last year but never received a vote in the House.) But ENDA is written with an extra, and wholly unnecessary, religious exemption.
The 1964 Civil Rights Act permits private organizations to factor religion into hiring decisions if religious faith is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." In short, a church's Sunday school teachers can be subject to a religious test, but not its custodians. That standard has served the country well for 50 years, and there's no need to dilute it merely because some religious organizations do not approve of homosexuality.
The case for including an exemption in the president's executive order is even weaker than the one for including it in the law. No private organization is forced to seek government contracts. Any that wish to do so should be bound by anti-discrimination requirements that cover sexual orientation. An executive order signed by President George W. Bush, and still in effect, allows religious organizations applying for government contracts to consider religion in their hiring decisions, and that's fine. But considering sexual orientation is another matter, and it would be a step too far.
Not so long ago, some faith communities considered interracial marriages sinful. Today, some consider marriage after divorce sinful. Others consider alcohol consumption sinful. Religious communities must be free to determine what is sinful, but they must not be allowed to determine what is lawful.
An executive order that does not include new religious exemptions would have little effect on federal contracting, because many private organizations already bar anti-gay workplace practices. But as the legal debate over religious exemptions intensifies, an order with no new exemptions would establish an important principle: The protections contained in the 1964 Civil Rights Act must not be diluted for gays and lesbians.
Gay-rights advocates have for years urged Obama to honor the commitment he made in 2008 to sign an anti-discrimination executive order. Had he done so before last week, he might have adopted ENDA's overly broad religious exemption. He now has a chance to avoid that mistake -- and show Congress how best to enact vital protections for sexual orientation.
--Editors: Francis Barry, Mary Duenwald.
To contact the editor on this story:
David Shipley at email@example.com