Does standing up for religious freedom mean discriminating against gay people? Photographer: Scott Olson/Getty Images
Does standing up for religious freedom mean discriminating against gay people? Photographer: Scott Olson/Getty Images

The U.S. Supreme Court says closely held religious corporations get a religious exemption from providing contraceptive insurance. Should President Barack Obama follow the court’s lead and exempt religious affiliates from an executive order requiring federal contractors not to discriminate against gay people?

The answer is no -- not because the court was wrong, and not because the religious affiliates aren’t sincere. The reason is that the contraceptive case and the question of federal contractors respecting gay rights are fundamentally different. One case is about a right against government coercion; the other is about the privilege of getting a federal contract. And while contraceptive insurance is nice, it isn’t a constitutional value -- anti-discrimination is.

To begin with, it’s important to acknowledge that the Hobby Lobby decision has an important moral component. The court was, I think, wrong to say that a closely held corporation can hold a religious belief. But beyond that mistake, the court was right to say that under the Religious Freedom Restoration Act, sincerely believing religious people should be entitled to exemptions from coercive laws when they can be accommodated easily. The law may be bad policy, but it was enacted by a unanimous House and a near-unanimous Senate, and it stands for a defensible moral choice in favor of religion and against the majoritarian preferences of the political moment.

Unlike the Affordable Care Act, the much awaited executive order doesn’t involve a coercive law. To the contrary, it would apply only to organizations that voluntarily contract with the government to deliver public goods that the government doesn’t want to provide itself. The public goods may be very valuable and important, including education, adoption services and efforts to combat human trafficking. But in principle, the government could provide all those goods itself -- and equally in principle, religious affiliates could choose to provide those goods charitably, without being paid for by the government.

The noncoercive nature of government contracts makes a very substantial moral difference. Under RFRA’s moral vision, you have a right not to be coerced to act against your religion. But there is no such right, legally or morally, to be able to contract with the government under whatever conditions you choose. A contract requires two sides to agree; if one doesn’t like the deal, it can opt out. Religious affiliates therefore have no moral claim to be religiously exempt from an executive order requiring them not to discriminate. If they want to discriminate so much, they are free to continue to do so -- just without a government contract.

The other major difference between the contraceptive care situation and the executive order is the nature of the interest on the government’s side that must be weighed against the religious organization’s interest in being exempt. When it comes to contraceptives, the employer’s interest in not violating its own religious dictates plausibly outweighs the government’s interest in making the employer pay for the coverage. The Supreme Court said that the insurance company or the government could pay for it. That costs money -- but it doesn’t cost principle.

When it comes to discrimination against gay people, however, the scales balance very differently. On the one side, again, is the organization’s desire not to violate its religious principles in dealing with its employees. On the other side, however, is the moral and constitutional right for gay people to be free of discrimination. This interest should outweigh the employer’s concern.

To see why this is true, imagine that the religious affiliate -- let’s make it an evangelical university that takes government grants -- believed interracial marriage was wrong and banned interracial married couples from student housing. (I’m not making up this hypothetical at random. In a 1983 case, the court upheld the Internal Revenue Service when it pulled Bob Jones University’s tax-exempt status over its policy against interracial dating.) Then imagine that the president, by executive order, insisted that all government contractors not discriminate on the basis of race.

The university could argue for an exemption on religious grounds: Its sincerely held beliefs reject interracial marriage. But I think most reasonable observers would think that the president shouldn't grant the exemption. The public interest in treating all married couples equally outweighs the university's interest in continuing to take public contracts without violating the government's dictates.

Now substitute same-sex marriage for interracial marriage. The public’s interest in anti-discrimination is the same, and it outweighs the university’s interest in keeping its contracts while continuing to discriminate. The Supreme Court has held -- and it was morally right to hold -- that the federal government shouldn’t discriminate against gay people who are married.

An important caveat needs to be added. It wouldn’t be all right for the government to pressure religious organizations to change their own rules with respect to marriage. That objective would violate both the establishment and the free exercise clauses of the Constitution. But the proposed executive order isn’t trying to make churches perform same-sex marriages if they don’t believe in them. It’s simply banning them from discriminating -- provided they want to keep taking government money. And that, on balance, is the right thing to do.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Stacey Shick at sshick@bloomberg.net.