Will Obama’s One Man ENDA End Up in Court?

Obama signing

One of my Facebook friends called him “the great divider.” 

Even though I am both aware and horrified by the endless hatred directed at whoever sits behind the desk in the Oval Office, I think that’s a fair thing to say about President Obama. His penchant for one man sledgehammer legislating against the First Amendment is a particular case in point. 

So far as I am concerned, the HHS Mandate is a permanent blot on his presidency.

I’ve spent the morning, sifting through the product of our President’s mighty pen from yesterday. I’ve been sitting in front of my computer with the screens littered with copies of the executive orders he amended, wondering, where, exactly, is this one man show pointing us? 

My best guess, based on what I see, is that it’s pointing us toward court. The reason is the lack of a specific religious exemption in President Obama’s verbiage. 

What he has done with this executive order is to amend two previous executive orders from the 1960s. These 1960s executive orders provided direction to the Department of Labor on the question of discrimination in employment. The orders dealt with employment discrimination because of “race, color, religion, sex, national origin, handicap or age.” President Obama’s executive order adds “sexual orientation, gender identity” to that list.

Executive Order 11478 deals with direct federal employment by direct government agencies. I think it will stand and basically have no big problem with the order as I understand it now. I may change my opinion when I see the rules promulgated by the Department of Labor. 

However, Executive Order 11246 deals with federal contractors. This could be construed to include grantees and, if you want to stretch it, any entity that receives federal money for anything. 

President Obama did not address a third executive order by President Bush, Executive Order 13279. President Bush’s order was designed to protect the religious freedom of entities that receive grants, contract with the government or otherwise receive government monies. It contains a laundry list of sorts of the types of services which it covers. It also specifically addresses the entities covered by Executive Order 11246, which applies to federal contractors. Executive Order 11246 is one of the orders President Obama amended yesterday. 

The assumption being made in various press outlets that I have read is that President Bush’s executive order provides the religious exemptions needed to keep President Obama’s ENDA order from turning into another HHS Mandate.

Is that true?

Only somewhat, and, depending on the regs the Department of Labor comes up with, maybe not at all. 

The reason I say that is two-fold. First, and scariest, President Obama’s order calls on the Department of Labor to promulgate rules. This is normal and necessary. What makes it scary is the big time precedent of this administration using rules and regs to attack religious freedom.

The disastrous HHS Mandate is a rule, not a law. Of course, if the president sincerely wants to avoid another HHS Mandate, he can use his powers to encourage sensible regulations that ensure religious liberty. He also has the power to deep-six any reg or rule by not signing it. 

I’m taking a wait and see position on how those rules are going to look and what this president signs. He lied about religious freedom to get the votes to pass the Affordable Health Care Act and he’s consistently lied about the impact of the HHS Mandate. So, I don’t trust him. 

The second reason I think this may end up in court is that court cases and various agency rulings have already attacked Catholic institutions and successfully stripped them of federal grants because of the Church’s adherence to 2,000 year-old consistent teachings. There is also a lawsuit in the courts attacking the Catholic bishops for teaching Catholic teaching concerning abortion in regards to Catholic hospitals. 

Both Robert George, Vice President at United States Commission on International Religious Freedom, and the Catholic Bishops have issued statements opposing President Obama’s ENDA order precisely because it lacks a religious exemption. I think they are on solid ground. 

Based on that litigious impulse to attack Catholic teaching through the courts, I think the chances of ENDA ending up in court are quite good. What we will probably have at that point is adjudication based on dueling executive orders. President Obama could have stopped this before it got out of the gate by simply adding a religious exemption to his orders yesterday. 

I going to let you read both Robert George’s complete statement and the complete statement from the USCCB without edits. 

From the USCCB:

USCCB Chairmen Respond To ‘Unprecedented And Extreme’ Executive Order

 
July 21, 2014

WASHINGTON–The bishop-Chairmen of two USCCB Committees responded with great concern to President Obama’s July 21 executive order to prohibit federal government contractors from what the Administration deems “sexual orientation” and “gender identity” discrimination and to forbid “gender identity” discrimination in the employment of federal employees. The problems the bishops identify in the order relate both to the flaws in its core prohibitions, and to its lack of religious freedom protection.

Two USCCB Chairmen – Archbishop William E. Lori of Baltimore, Chairman of the Ad Hoc Committee for Religious Liberty and Bishop Richard J. Malone of Buffalo, Chairman of the Committee on Laity, Marriage, Family Life and Youth – together issued the following statement.  

Today’s executive order is unprecedented and extreme and should be opposed.  

In the name of forbidding discrimination, this order implements discrimination. With the stroke of a pen, it lends the economic power of the federal government to a deeply flawed understanding of human sexuality, to which faithful Catholics and many other people of faith will not assent. As a result, the order will exclude federal contractors precisely on the basis of their religious beliefs.  

More specifically, the Church strongly opposes both unjust discrimination against those who experience a homosexual inclination and sexual conduct outside of marriage, which is the union of one man and one woman. But the executive order, as it regards federal government contractors, ignores the inclination/conduct distinction in the undefined term “sexual orientation.” As a result, even contractors that disregard sexual inclination in employment face the possibility of exclusion from federal contracting if their employment policies or practices reflect religious or moral objections to extramarital sexual conduct.

The executive order prohibits “gender identity” discrimination, a prohibition that is previously unknown at the federal level, and that is predicated on the false idea that “gender” is nothing more than a social construct or psychological reality that can be chosen at variance from one’s biological sex. This is a problem not only of principle but of practice, as it will jeopardize the privacy and associational rights of both federal contractor employees and federal employees. For example, a biological male employee may be allowed to use the women’s restroom or locker room provided by the employer because the male employee identifies as a female.  

In an attempt to avoid these needless conflicts, states that have passed “sexual orientation” or “gender identity” prohibitions have overwhelmingly included protections for religious employers. When the U.S. Senate, which is controlled by the President’s own party, passed the similar Employment Non-Discrimination Act (ENDA) last year, it included religious liberty protections as well. Indeed, all prior versions of ENDA had at least some religious liberty protections. But the executive order is an anomaly in this regard, containing no religious liberty protections. In this way, the order, which is fundamentally flawed in itself, also needlessly prefers conflict and exclusion over coexistence and cooperation. 

Regarding federal contractors, the Executive Order will take effect after rules to be promulgated by the Department of Labor implementing the Executive Order become final. Regarding federal employment, the Executive Order is effective immediately.

Keywords: Employment Non-Discrimination Act, ENDA, Archbishop William E. Lori, Bishop Richard Malone, gender identity, sexual identity
# # # # #

MEDIA CONTACT ONLY
Sister Mary Ann Walsh
O: 202-541-321
Email

From Robert George’s Facebook page:

I have, up till now, avoided the “war on this,” “war on that,” rhetoric. But now there is no avoiding it. Today Barack Obama declared war on the Catholic Church and people of other faiths who hold to traditional beliefs about marriage and sexual morality. The U.S. Conference of Catholic Bishops explains the situation in a statement responding to the executive order the President issued today. There is no way for religious people to defend themselves against being reduced to the status of second-class citizens except by electing to office, first in 2014 and then in 2016, men and women who will repeal this executive order and other governmental acts that undermine their religious freedom and rights of conscience. But that is only part of the picture. The reason that Catholics and other people of faith seek government contracts is to carry our their mission of serving people in need, orphans, the poor, refugees and the dispossessed, persons suffering from afflictions and addictions. It is the people who are served who are secondary victims of this war on conscience when faith-based providers are forced out—as Catholic Charities was forced out of providing adoption services in Massachusetts, Illinois, and the District of Columbia. We must defeat the enemies of conscience—at the ballot box—not only to protect our own freedom and that of our fellow citizens, but also to protect the interests of those served so well by faith-based institutions. This is a war we must win for their sake as well as our own. 

http://www.usccb.org/news/2014/14-126.cfm

 

 

President Obama Signs ENDA Executive Order

President Obama issued his much-ballyhooed executive order on employment discrimination concerning sexual orientation (ENDA) today.

I need to think this through before I write about it. In them meantime, here are my first thoughts:

1. The order is a not a statute. That means it is limited in scope to federal situations.

2. It certainly applies to direct, federal employees. It almost certainly also applies to federal contractors. Does it apply as well to federal grantees? I’m guessing yes. Does it apply to anyone who takes federal money for any purpose? That’s the sticking point, and the limits may have to be adjudicated before we know.

3. Does this executive order rescind earlier executive orders by other presidents, that included religious exemptions? That’s a critical question, and one reason why I want time to sort this out.

You can find the exact wording of the order here. It’s mainly references to other orders, so it’s not easy to understand without copies of those other orders in front of you.

Here is President Obama’s complete statement on issuing this order, without edits.

 

Remarks by the President at Signing of Executive Order on LGBT Workplace Discrimination

East Room

10:39 A.M. EDT

THE PRESIDENT:  Welcome to the White House, everybody.  I know I’m a little late.  But that’s okay because we’ve got some big business to do here.

Many of you have worked for a long time to see this day coming.  You organized, you spoke up, you signed petitions, you sent letters — I know because I got a lot of them.  (Laughter.) And now, thanks to your passionate advocacy and the irrefutable rightness of your cause, our government — government of the people, by the people, and for the people — will become just a little bit fairer.

AUDIENCE MEMBER:  Amen.  (Applause.)

THE PRESIDENT:  It doesn’t make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are –  lesbian, gay, bisexual, transgender.  And that’s wrong.  We’re here to do what we can to make it right — to bend that arc of justice just a little bit in a better direction.

In a few moments, I will sign an executive order that does two things.  First, the federal government already prohibits employment discrimination on the basis of sexual orientation.  Once I sign this order, the same will be explicitly true for gender identity.  (Applause.)

And second, we’re going to prohibit all companies that receive a contract from the federal government from discriminating against their LGBT employees.  (Applause.)    America’s federal contracts should not subsidize discrimination against the American people.

Now, this executive order is part of a long bipartisan tradition.  President Roosevelt signed an order prohibiting racial discrimination in the national defense industry.  President Eisenhower strengthened it.  President Johnson expanded it.  Today, I’m going to expand it again.

Currently, 18 states have already banned workplace discrimination based on sexual orientation and gender identity.  And over 200 cities and localities have done the same.  Governor Terry McAuliffe is here; his first act as governor was to prohibit discrimination against LGBT employees of the Commonwealth of Virginia.  (Applause.)  Where did Terry go?  Right back here.

I’ve appointed a record number of lesbian, gay, bisexual, and transgender public servants to positions across my administration.  They are ambassadors and federal judges, special assistants, senior advisors from the Pentagon to the Labor Department.  Every day, their talent is put to work on behalf of the American people.

Equality in the workplace is not only the right thing to do, it turns out to be good business.  That’s why a majority of Fortune 500 companies already have nondiscrimination policies in place.  It is not just about doing the right thing — it’s also about attracting and retaining the best talent.  And there are several business leaders who are here today who will attest to that.

And yet, despite all that, in too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense.  There are people here today who’ve lost their jobs for that reason.  This is not speculative, this is not a matter of political correctness — people lose their jobs as a consequence of this.  Their livelihoods are threatened, their families are threatened.  In fact, more states now allow same-sex marriage than prohibit discrimination against LGBT workers.  So I firmly believe that it’s time to address this injustice for every American.

Now, Congress has spent 40 years — four decades — considering legislation that would help solve the problem.  That’s a long time.  And yet they still haven’t gotten it done.  Senators Terry [Tammy] Baldwin and Jeff Merkley are here.  They have been champions of this issue for a long, long time.  We are very proud of them.  I know they will not stop fighting until fair treatment for all workers is the federal law of the land.  Everyone thanks them for that.  (Applause.)

But I’m going to do what I can, with the authority I have, to act.  The rest of you, of course, need to keep putting pressure on Congress to pass federal legislation that resolves this problem once and for all.

AUDIENCE MEMBER:  Amen!

THE PRESIDENT:  Amen.  Amen.  (Applause.)  Got the “amen” corner here.  (Laughter.)  Well — (sings) — (laughter.)  You don’t want to get me preaching, now.  (Laughter.)

For more than two centuries, we have strived, often at great cost, to form “a more perfect union” — to make sure that “we, the people” applies to all the people.  Many of us are only here because others fought to secure rights and opportunities for us. And we’ve got a responsibility to do the same for future generations.  We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love — no matter what, you can make it in this country.

That’s the story of America.  That’s the story of this movement.  I want to thank all of you for doing your part.  We’ve got a long way to go, but I hope as everybody looks around this room, you are reminded of the extraordinary progress that we have made not just in our lifetimes, but in the last five years.  In the last two years.  (Applause.)  In the last one year.  (Applause.)  We’re on the right side of history.

I’m going to sign this executive order.  Thank you, everybody.  (Applause.)

(The executive order is signed.)

END
10:47 A.M. EDT


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