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Trump's new religious exemptions for employers an invitation to discriminate, critics say

With just six weeks left in his term, President Donald Trump looks to cement his legacy on religious liberty.
The Department of Labor headquarters in Washington on March 26, 2020.Alex Edelman / AFP - Getty Images file

The Trump administration has issued new guidance on religious exemptions for federal contractors that critics say grants them carte blanche to discriminate against LGBTQ workers, women, religious minorities and others.

The Department of Labor’s Office of Federal Contract Compliance Programs released Monday its final rule on exemptions to Title VII of the Civil Rights Act of 1964 and a related 1965 executive order instituting anti-discrimination requirements for federal contractors.

The provision expands exceptions to any contractors — for-profit or nonprofit — who “hold themselves out to the public as carrying out a religious purpose.”

“This rule is intended to correct any misperception that religious organizations are disfavored in government contracting by setting forth appropriate protections for their autonomy to hire employees who will further their religious missions,” it reads in part. According to the office, the new rule “reduces confusion” and reinforces existing statutes, including the Religious Freedom Restoration Act, 1993 legislation intended to prevent the federal government from “substantially burdening a person’s exercise of religion.”

“Religious organizations should not have to fear that acceptance of a federal contract or subcontract will require them to abandon their religious character or identity,” Secretary of Labor Eugene Scalia said in a statement.

The U.S. government is the single largest customer in the world, awarding hundreds of billions of dollars in federal contracts each year to companies covering every facet of life, from military hardware to social services. Signed by President Lyndon Johnson in 1965, Executive Order 11246 prohibited businesses with government contracts over $10,000 from employment discrimination based on race, color, religion, sex or national origin. It did, however, stipulate religious organizations could prefer to hire ‘individuals of a particular religion.’”

In a subsequent order in 2014, President Barack Obama added gender identity and sexual orientation to the list of characteristics protected in EO 11246.

The Labor Department first proposed the new religious exemption guidelines in August 2019 and received more than 109,000 comments during the public comment period — including more than 90,000 from organized letter-writing campaigns.

Civil rights organizations blasted Monday’s final rule for disarming existing nondiscrimination protections with overly broad exemptions.

Alison Gill, vice president for legal and policy at American Atheists, called it “an absolute attack on religious equality and workers’ rights.”

Employees — especially those of government contractors — shouldn’t face a religious litmus test to get or keep their jobs, she said in a statement. “The American taxpayer should not be forced to fund discrimination, period.”

Jennifer Pizer, director of law and policy for LGBTQ legal organization Lambda Legal, said the new guidance is part of a decadeslong effort by Christian conservatives to remove anti-discrimination safeguards.

“The argument is, ‘If faith-based groups don’t receive government money with the freedom to act however they want to, then that’s discrimination. We must do it this way, and you must fund us,’” Pizer told NBC News.

Not long ago, she said, that suggestion would have been seen as a violation of the Constitution’s establishment clause, which prohibits the government from establishing an official religion or favoring one faith above others.

“But now it’s part of a growing victim narrative among the Christian right,” Pizer said. “It’s a flabbergasting alternate reality where white Christian society is somehow under attack by people who want equal rights.”

The Office of Federal Contract Compliance Programs guidelines “are not a surprise,” she added, “but they’re a profound affront to one of the basic principles our nation was founded on.”

With evangelicals among his strongest supporters, President Donald Trump has made religious freedom a key tenet of his administration: He’s issued executive orders protecting prayer in school and clergy who endorse political candidates from the pulpit. He also broadened the range of employers who can refuse to cover birth control under their health insurance policies. The Department of Justice under Trump issued amicus briefs supporting religious liberty in several Supreme Court cases, including Masterpiece Cakeshop v Colorado Civil Rights Commission, in which a Christian baker refused to sell a wedding cake to a gay couple, and the still-pending Fulton v. City of Philadelphia, which addresses whether faith-based child welfare agencies can turn away LGBTQ foster and adoptive parents and still receive taxpayer money.

In 2018, Trump announced a new White House faith and opportunity initiative, designed to “to remove barriers which have unfairly prevented faith-based organizations from working with or receiving funding from the federal government.”

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The Labor Department was among nine agencies that proposed subsequent guidelines to “safeguard the fundamental right to religious freedom by eliminating unfair and unequal treatment by the federal government,” according to deputy press secretary Judd Deere.

The Department of Education issued its final rule in September, while other agencies have yet to finalize their plans. The Labor Department policy announced Monday won’t take effect until Jan. 8, less than two weeks before Inauguration Day.

President-elect Joe Biden’s transition team declined to comment on whether it would overturn the new rule. However, in previously released policy statements, Biden has committed to restoring “full implementation” of President Barack Obama’s executive order prohibiting discrimination by federal contractors on the basis of sexual orientation and gender identity.

But even if they’re only in effect for a limited time, Pizer said, the policies “invite discrimination — and represent a real legal and political view that’s moving forward.”

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