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

Will Obama’s One Man ENDA End Up in Court? July 22, 2014

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
# # # # #

Sister Mary Ann Walsh
O: 202-541-321

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. 




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19 responses to “Will Obama’s One Man ENDA End Up in Court?”

  1. Oops, bad move by Obama. He has just given NAMBLA types protection as well

    The order states that there shall be no discrimination based on “sexual orientation or gender identity”

    NAMBLA types certainly have a sexual orientation – towards children.

    Oops. Will they seize this opening? I bet they will. Wait for it.

    • And it will be a (pause for a little melodramatic sniff, to falsely imply regret and distaste) “the unfortunate price we pay for freedom in this great land, like the protection pornography has to also enjoy to secure our First Amendment rights of expression,” according to His Highness and other Regressives. :p

  2. It will end up in court, and Obama knows it — he’s a lawyer. The courts will decide whether Bush’s executive order allowing religious organizations to favor adherents in hiring decisions trumps the new non-discrimination language. My guess is they will say “no,” but Obama will deny responsibility. I’m feeling a bit cynical this morning and suppose it’s time to change my voter registration from D to I …

    • I agree it’s likely to end in court, but disagree strongly with your conclusion. I think the courts will decide that unless the president issues an EO to specifically countermand or modify EO 13279 from the era of President Dubya, the existing exemption which allows religious organizations to discriminate on race, sex, and so forth will extend to allow discriminating on sexual orientation.

    • Why a Catholic would be part of the D party is beyond me. Sure Obama is bringing this war on religion to a head, but the D’s have been covertly undermining religion since the 1970s.

    • I think the courts will pretty easily find that the President has overstepped his bounds. The First Amendment requires free exercise of religion. The First Amendment is probably our most important amendment. While the state may have an interest in promulgating anti-discriminatino laws, those laws can never violate our fundamental freedoms.

      Since every federal discrimination law includes an exemption for religious organizations, Obama is going far beyond what the statutes passed by Congress said. It simply makes no sense to force religious organizations to hire people that fundamentally disagree with their mission and seek to undercut that mission.

      Obama is singling out religious organizations and attempting to demean them, by claiming that their deeply held beliefs are not good enough for the state anymore, and that the state has to move in and force religious organizations to violate their beliefs. This is Hobby Lobby, part II.

      Obama has basically never won in the courts on a religious freedom matter. No reason to think he has it right this time.

  3. This administration believes that not only is there no difference between genders but that it is the role of government to implement laws to enforce their belief. To me, part of the Hobby Lobby fight was an effort to make birth control so available that women would never face the concern of getting pregnant and missing work. Since this could derail a woman’s career and not a man’s they wanted to make it so that available that the gender difference of carrying children wouldn’t exist. If you read the dissenting opinion that’s what it says. This administration believes in so much government overreach they essentially believe they can alter reality and make genders disappear. This is a logical next step. It will be challenged but will it be held up?

  4. Rebecca,
    Your concurrence with your friend’s observation that the President is “the great divider” is a position that I wholeheartedly agree with.

    And, unfortunately, in this case being “the great divider” is probably good politics for the President and his supporters. It allows him to appeal to those on the far left in the name of “freedom” while, simultaneously, encouraging a blistering response from “the right-wing-of-unreason crowd (that) will have scarred and defamed the name of Christ with their claims to be Christian while they say things that come straight from the pit” (as you wrote in your post on the Bishops yesterday). Unfortunately, such a response from the right-wing of unreason is probably good for the Democratic prospects.

    It is for that reason that I am particularly glad you provided the complete text of the USCCB Statement and that of Robert George (McCormick Professor of Jurisprudence at Princeton University, in addition to his position on the Commission for International Religious Freedom). The Bishops and Professor George present clear, substantive, and well-argued objections to the Executive Order. Ideally such an approach will be pursued and prevail in the upcoming debate and court cases. Such an approach is also essential to building an electoral coalition that will be able to prevail at the ballot box as Professor George says we must.

    Thanks again for your assessment and the substantiating texts. A great public service from a Public Catholic. 🙂

  5. He probably is doing it for his base voters, but I’m not convinced it won’t hold up in court. It all depends which court it goes to. Perhaps then there may be a challenge to the Supremes but that could take years. Obama will get away with this, at least for a few years. But it might actually stick.

  6. It’s a scary matter, no question. But your statement regarding the “lawsuit in the courts attacking the Catholic bishops for teaching Catholic teaching concerning abortion in regards to Catholic hospitals” is incorrect.

    The lawsuit is entirely baseless and mostly a PR move, but what the hospital did was clearly not required by or even consistent with Catholic teaching. Dr. John Haas, president of the National Catholic Bioethics Center and member of the Pontifical Academy for Life, was interviewed on NPR about this. You can listen to him here. http://thedianerehmshow.org/shows/2013-12-04/us-bishops-face-lawsuit-over-abortion-policies-roman-catholic-hospitals
    He clearly states that the hospital could have and should have acted to treat the threat to the patient’s life and that doing so is not an abortion according to Catholic teaching. Almost every Catholic moral theologian would agree with this. In fact, this woman’s case is often used as a classic example of what is treatable and not considered an abortion according to Magisterial teaching.

    The USCCB says as much in the Ethical and Religious Directives for Catholic Health Care Services. Directives 45 and 47 make it clear that procedures to treat an illness are permitted even if they indirectly result in the death of an unborn baby, which is exactly what happened in the case you linked to. http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf

    • Is it baseless? Will the courts give it standing? Or is it a harbinger?

      I think it is, at the very least, a harbinger. ACLU lawsuits usually gain standing, btw.

      • You’re right, it is a harbinger. The NPR
        interview also includes a doctor in Chicago who seems to have made it
        her mission to destroy Catholic healthcare for its teaching on
        beginning of life care. I’d strongly encourage you to listen to the NPR interview. It’s very informative of this declaration of war on Catholic hospitals and Dr. Haas does a great job in defending them.

        However, the suit is baseless, you can’t blame the bishops for their bad patient outcomes when the outcomes occurred precisely because the hospital didn’t follow the bishops’ directives. That’ s like blaming the AMA cause a physician violates their code of ethics, or Hippocrates for a violation of his oath.

        But we don’t do ourselves any favors when we uphold a Catholic hospital for incorrectly applying Church teaching to a case. The hospital was wrong for treating the patient this way and incorrect that doing so was required by Magisterial teaching when it certainly was not. And if we don’t stand up and say so, we’re going to lose this fight faster than we are losing the one on gay marriage.

  7. Perhaps the need is for more truly Catholic social services, funded independently of government contracts.

    • Our maybe the Church should get out of these earthly issues and worry about the souls of people, and help get them to heaven.
      The church send more and more like an ngo, than the bride of Christ these days

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