n executive order President Obama signed Monday prohibiting sexual orientation discrimination in federal hiring may not immediately affect many religious organizations, but leaders are still raising their eyebrows.
The executive order amends a 1965 order prohibiting some forms of discrimination by federal contractors. The old text forbade contractors from discriminating “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” Obama’s revision adds “sexual orientation” and “gender identity” between “sex” and “national origin.”
Many religious organizations, such as World Vision, World Relief, and Catholic Charities partner with the federal government, but often receive grants, not contracts, so are not affected by the order, said Stanley Carlson-Thies, director of the Institutional Religious Freedom Alliance.
Religious organizations with federal grants are currently protected: A 2007 religious exemption memo from the federal attorney general’s office says the Religious Freedom Restoration Act “is reasonably construed” to exempt World Vision (and other religious organizations that administer federal funds through social services programs) from religious nondiscrimination requirements on other federal grantees.
The executive order also lets stand a George W. Bush-era provision allowing religious contractors to hire employees “of a particular religion,” said Thomas Berg, a professor of law and public policy at the University of St. Thomas (Minn.).
“Several federal courts have held that this language, incorporated from elsewhere in antidiscrimination law, allows religious organizations to have standards concerning employees’ conduct if those moral standards stem from the organization’s religious beliefs,” Berg said.
These past orders add up to a patchwork of protection for religious organizations, said Douglas Laycock, a professor of law and religious studies at the University of Virginia.
“And very important, [the] executive order creates no right for anyone to sue anyone else. So gay rights groups cannot organize litigation against religious contactors,” he said. “Only the contracting agencies can enforce this order, and they may quietly enforce it with attention to religious liberty—which is what this administration has mostly done so far.”
However, that may not always be the case, said Jenny Yang, vice president of advocacy and policy for World Relief, a federal grantee.
“Our main concern is its implication on religious freedom down the line, where future executive orders could also include not just federal contractors but grantees as well,” she said. “It’s a slippery slope and we feel the need to speak up whenever we feel like religious freedom is threatened.”
In addition, federal funds for overseas relief and development are increasingly allocated by contracts, and prison services are also funded through contracts, so any order regulating contracts is likely to affect more religious organizations in the future, Carlson-Thies said.
The U.S. government uses contracts to fulfill specific, well-defined requests, such as building ships and other items for the military, and often regulates them with executive orders, Carlson-Thies said.
“Grants are more what we think of as philanthropy,” he said. “‘We need somebody that’s going to serve inner city kids in such and such a neighborhood’ — you come to us with your best proposal; we’ll select the best, give you money, and get reports on how it’s going.”