Chalk up another success for religious freedom. Private sector businesses of all kinds – profit and non-profit, goods and services – trying to contract with the Federal Government may soon be allowed to do so without loss of religious liberty.
In short, the US Department of Labor is issuing a new rule. The rule aims to assure “that conscience and religious freedom are given the broadest protection permitted by law,” and that American businesses are not disallowed from federal contracting based on religious views of their owners or employees.
If the rule sounds like common sense, it is occasioned by long-percolating concerns that federal agencies have explicitly or implicitly avoided contracting with religiously affiliated organizations, or worse have required competing businesses to abandon religious precepts in order to win a federal contract.
In short, the First Amendment provides all Americans – including those who own businesses – the right not to be discriminated against based on their sincerely held religious views. On one hand, the Federal Government cannot favor one religion over another. On the other hand, freedom of conscience is plainly assured – and should always be for businesses conforming to their owner’s beliefs.
The US Constitution is clear: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” This fundamental right has been many times reaffirmed, including by Civil Rights Act of 1964, which contains an unambiguous exemption for religious organizations.
Likewise, the right was affirmed in Executive Order 11246, and has been in regulations governing employment practices by federal contractors – promulgated by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).
Notably, our Founders did not think religious faith – and freedom to put faith into practice – was secondary, peripheral, negotiable or unimportant. That is one reason the protection appears in our First of Ten which compose the Bill of Rights.
Notably, our Republic’s Founders included Anglicans (George Washington, John Jay, Edward Rutledge), Presbyterians (John Witherspoon, Richard Stockton), Congregationalists (John Adams, Samuel Adams), as well as Quakers, Lutherans, Dutch Reformed, Deists, and Catholics (Charles Carroll, Thomas Fitzsimmons). What is more, faith undergirds the Declaration of Independence.
Before recent disputations and Supreme Court rulings affirming “free exercise” rights, such as in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Trinity Lutheran Church v. Comer, and Burwell v. Hobby Lobby Stores, the legal right existed to believe, practice and freely conduct business pursuant to one’s religious faith has been recognized.
Unclear has been the Federal Government’s duty to comply with principles affirmed in prevailing law. Quoting from Justice Kennedy’s majority in Masterpiece, there must be no “clear and impermissible hostility toward the sincere religious beliefs motivating” an employer’s decision not to perform certain acts.
Likewise, from Masterpiece, an arm of government was wrong to declare “that religious beliefs cannot legitimately be carried into the public sphere or commercial domain,” since the public sphere and commercial domain are simply extensions of constitutionally protected individual belief.
Finally, Kennedy noted that government cannot favor one set of religious beliefs over another, or secular over religious beliefs, a view that Justice Gorsuch expanded in a concurrence, pointing out that government had permitted secular objections to prevail, but now objected to a religious objection.
In short, the law has always been clear – and was recently crystalized again by the High Court – allowing sanctity of conscience and “free exercise” of faith to take precedence over other considerations.
The remaining problem is this: Despite clear constitutional and statutory provisions, Supreme Court rulings, and an Executive Order, some federal agencies appear to be dragging their feet. Religious organizations – and non-religious organizations governed by those holding sincere religious convictions – have not been treated equitably.
The solution is therefore timely, and worth being trumpeted. The US Labor Department is eliminating any lack of clarity. The proposed rule will affirm “the protections afforded religious organizations and individuals under the Constitution and federal law.”
Specifically, “Executive Orders 13798, Promoting Free Speech and Religious Liberty, and 13831, Establishment of a White House Faith and Opportunity Initiative, along with U.S. Department of Justice guidance … instruct federal agencies to protect religious exercise and not impede it.”
The new rule assures that “religious organizations may make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”
At the same time, squaring current misunderstandings, the new rule “reaffirms employers’ obligations not to discriminate on the basis of race, sex, or other protected bases and does not exempt or excuse a contractor from complying with any other requirements.”
The result is that hiring, and treatment decisions must abide civil rights laws, while religious organizations and individuals with “sincerely held religious tenets and beliefs” cannot be discriminated against by reluctant, often seemingly anti-religious federal government agencies.
The Department concluded, in closing, that “consistent with the president’s policy to enforce the robust protections for religious freedom found in federal law, the proposed rule states that it should be construed to provide the broadest protection of religious exercise recognized by the Constitution and other laws, such as the Religious Freedom Restoration Act.”
What does this all mean? Simply this: For some time, those of faith have felt they stood on uneven ground when approaching the federal government. The ground is now level, at least in theory. The First Amendment’s assurance of “free exercise” without government discrimination is again affirmed.