President Obama has signed the executive order that will prohibit federal contractors from employment discrimination on the basis of sexual orientation and gender identity. The denial of the requested religious exemption has attracted the ire of NOM and the Catholic Church.
I'll open with NOM. They say:
The National Organization for Marriage (NOM) expressed concern over President Obama's signing today of a new executive order ostensibly aimed at preventing workplace discrimination against LGBT persons but that in reality could target Christians and other people of faith for reverse discrimination and harassing lawsuits. The executive order applies to all groups, including religious employers, who contract with the federal government.
First of all, "ostensibly"? Is whether or not it actually protects LGBT workers still an unsolved question? Obviously, no.
Secondly, the last two sentences contradict each other. It's true that the executive order applies to "all groups". As all groups, religious and non-religious are treated equally, no discrimination is occurring. Furthermore, NOM's persecution cries are undermined by its own use of the words "reverse discrimination", i.e. discrimination against the majority. If they're in the majority, then they should stop being so paranoid about how everyone is coming just to persecute them.
"The fact is that non-discrimination rules like the order issued by President Obama can become a weapon used to punish and harass individuals and groups who support marriage as the union of one man and one woman," said Brian S. Brown, NOM's president.
The only way that people can get into trouble with anti-discrimination laws is by breaking them. That requires discriminating, in this case, against an LGBT person. Anti-discrimination laws do not require anyone to support marriage equality. You're not allowed to use your beliefs as an excuse to discriminate, but the beliefs are not regulated, only the commercial activity.
"As with the flawed ENDA (Employee Non-Discrimination Act) legislation that was rejected by Congress,
A stone-headed, stubborn-assed obstructionist Speaker of the House who refuses to allow a vote on legislation ≠ legislation rejected by Congress.
President Obama's order has the great potential of putting employers in the position of standing up for their faith values or violating the new order. This will unnecessarily subject people of faith to harassing complaints and lawsuits."
I can accept a possibility that there could be a lawsuit filed against a company that discriminates in violation of the order. But such a company would be breaking the rules it has agreed to abide by. Remember, this only applies to federal contractors. They agree to the rules set by the government. They are not forced to not discriminate; they just can't get a federal contract if they do. Thus, I view such a lawsuit as not unnecessary, but the opposite. Such a lawsuit would be necessary to require companies to play by the rules they have agreed to and to deliver justice to LGBT workers.
Brown surmised that this executive order could lead to Christians and others with belief in marriage as the union of a man and a woman facing reprisal and even punishment simply for expressing their views in the workplace.
Anti-LGBT workplace discrimination is said to have occurred if a hostile work environment is created due to an employee's sexual orientation or gender identity. But this does not occur by someone saying that they oppose marriage equality. Wikipedia
explains:
The United States Supreme Court stated in Oncale v. Sundowner Offshore Services, that Title VII is "not a general civility code." Thus, federal law within the USA does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Rather, the conduct must be so objectively offensive as to alter the conditions of the individual's employment. The conditions of employment are altered only if the harassment culminates in a tangible employment action or are sufficiently severe or pervasive.
Don't forget that the First Amendment also makes unconstitutional the penalization of opposition to marriage equality.
"All manner of frivolous lawsuits could result from an action like this, and that's a dangerous thing when the courts have already shown such a lack of restraint when it comes to the question of the definition of marriage," Brown maintained. "This is nothing more than an agenda to create a cultural narrative wherein the belief in marriage as the union of one man and one woman becomes the legal and social equivalent of bigotry or hate speech.
Remember when Pope Francis said that the Catholic Church is too obsessed with marriage equality? I think this is what he meant. Marriage is mentioned nowhere in the executive order. It's not a statement about marriage. And there's certainly no provision that says "opposing marriage equality is bigotry hate speech".
It is the next step on a path we've already seen this administration proudly pursuing, a path toward a new thought-policing state where those who hold traditional values about marriage and family are to be marginalized."
Wow. That is one hell of a paranoid persecution complex. Considering that
there is a constitutional right to say "God Hates Fags" in public, I find that hard to believe.
Brown called on Congress to pass legislation overturning the new executive order and to revisit the issues of conscience protection and religious freedom for believers in traditional marriage. He urged citizens to contact their Senators and Representatives about these concerns.
I don't think I've ever seen a more blatant reversal of the reality of discrimination. It's even more blatant than
when they said that President Obama is persecuting the Catholic Church while dismissing offhand what happened to Matthew Shepard. Here's the discrimination reality: LGBT people are often discriminated against, whereas religious conservatives are not. But NOM doesn't only not want action to be taken to end the discrimination against the former, it wants Congress to actively go out of its way to prevent ending that discrimination. But the latter? That's where there's trouble. That's where Congress' time and attention should go. It should go toward preventing discrimination against a group that is already not discriminated against. But, of course, it should also go toward ensuring that discrimination against the group that is discriminated against continues.
Now onto the Catholic Church:
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,
My God. No wonder people are running away from you as fast as they can.
to which faithful Catholics and many other people of faith will not assent.
You don't have to assent to it. You just can't use it as an excuse to discriminate.
As a result, the order will exclude federal contractors precisely on the basis of their religious beliefs.
Bulls**t. Companies will be excluded from federal contracts if they discriminate, not because of their religious beliefs. Religious beliefs are not the grounds for which contracts are granted or denied. An organization can be of any religion, or none. It applies to all equally.
More specifically, the Church strongly opposes both unjust discrimination against those who experience a homosexual inclination
Can I ask just exactly how narrow the definition of "unjust discrimination" is? You oppose not just marriage equality, but also civil unions that provide important rights and responsibilities, as well as banning employment discrimination. You support AZ SB 1062 and KS HB 2453, which were written with the intent to legalize anti-LGBT discrimination. And, on at least one occasion, you've taken a stand
against anti-bullying legislation. Is there anything meaningful that is covered by "unjust discrimination" at all, or is it just a rhetorical device that you can use so you can get away with what you do without looking like complete a**holes?
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.
If you seriously see it as necessary to try and get into the private lives of employees like that, then you are seriously hysterical.
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.
Gender identity is not chosen. Did you choose yours? Did you say "Boy or girl, boy or girl, hmm, boy" (I know to put that because you're Catholic bishops, and women can't be Catholic bishops)? On very rare occasions, the gender does not match the sex. That's the science. GTFOI.
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.
Everywhere where that policy has been implemented,
there have been no problems.
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.
See that? It's flawed even with religious exemptions. That proves it. Their concerns aren't about "religious freedom", but keeping LGBT people as the lowest class of citizenship possible. All discrimination is just discrimination.
Now that I've addressed the specific claims of both groups, I'll explain why this executive order, and the lack of religious exemptions, are right. (For more on this, see my diary "Fox News, Hobby Lobby, Contraception And Discrimination".)
1. There is no right to a contract with the federal government. The federal government can decide who it wants to work with, and can set the terms and conditions of those that it does.
2. Federal contractors use public money. In a democracy, where everyone is equal. The government can't sanction discrimination. That requires that the government not do business with groups that do not treat everyone equally. (I oppose even the religious exemption from banning religious discrimination for federal contractors, but that idea probably won't be popular quickly.) The other thing is that if a company takes money from everyone, then they should be required to give back to everyone. Thus, companies that discriminate shouldn't get public money.
3. When you agree to a contract with the federal government, you implicitly agree to the valid regulations on your conduct that come with that contract. By valid, I mean constitutionally valid under the First Amendment and statutorily valid under the Religious Freedom Restoration Act. The Supreme Court explicitly stated in Hobby Lobby that banning workplace discrimination is valid under the latter, which automatically makes it valid under the less restrictive former. Even if the executive order will impose a burden on you that you find unreasonable, because no constitutional or statutory rights are being violated, no legal injustice is being done.
4. Opponents of the executive order may argue that some businesses are forced out of federal contracts. But did it every occur to them that maybe they could just follow the executive order? Losing the contract is not the only option that they have. If you decide not to follow the executive order, then I think you have to wear the consequences of doing so. To use the conservative talking point, I think they need to take "personal responsibility" for their decision.
5. Religious exemptions could potentially be a violation of the Establishment Clause of the First Amendment, because they suggest that a conscientious religious objection is a valid reason for an exemption, whereas a conscientious non-religious exemption is not. This establishes religion over irreligion. Justice Ginsburg made this point in her Hobby Lobby dissent, saying "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the Establishment Clause was designed to preclude."
Imagine if in the Vietnam War, only people who claimed a religious exemption to the war could be exempt from the draft, and that a non-religious exemption wouldn't cut it. I bet a religious exemption wouldn't be so popular then.
But it appears that nothing can convince NOM and the Catholic Church. They will oppose any protections at all. They're not concerned about "religious freedom". They're concerned that LGBT people might be treated as they are.
So what do we do?
On December 16, 2009, Keith Olbermann delivered a Special Comment criticizing the Affordable Care Act as too watered down. He said "if they are going to call you a socialist no matter what you do, you have just been given full, unfettered freedom to do what you know is just." I think we can apply that lesson here.
Next time an LGBT-inclusive non-discrimination law comes up, we write in a religious exemption, wait for NOM and the Catholic Church to say it's not enough, and then write it out again. If they can't be placated, and will not support it short of the religious exemption being so broad the law is useless, then let's not try to placate them. If they're going to oppose it anyway, there's no point trying to make them happy. If they don't take anything, we offer them nothing.
It's the only way they'll learn.