Labor Department becomes latest Trump agency to take interest in ‘religious freedom’

The Department of Labor issued a directive Friday that makes it easier for federal contractors to claim their religious beliefs as a defense against anti-LGBTQ discrimination charges.

On August 10, the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) issued an enforcement directive that says investigators should consider recent U.S. Supreme Court decisions and recent executive orders relating to issues of religious freedom. The directive wouldn’t directly have an effect on the 2014 executive order that says government contractors can’t discriminate against employees or applicants in the LGBTQ community, according to Bloomberg. It does mean, however, that auditors in this office can, under certain circumstances, allow for religious exemptions in situations relating to discrimination against the LGBTQ community.

The directive reads, “Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. … Recent Executive Orders have similarly reminded the federal government of its duty to protect religious exercise-and not to impede it.”

It referred to the U.S. Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a baker who refused to make a wedding cake for a same-sex couple. The Court reversed the Colorado Civil Rights Commission’s decision and said it showed bias during its consideration of the religious freedom defense, but that these concerns were unique to the case. The directive also referred to the 2017 case from Missouri, Trinity Lutheran Church of Columbia, Inc. v. Comer, where the Court decided that it is a violation of the First Amendment’s guarantee of free exercise of religion to deny religious organizations the ability to apply to a neutral and secular aid program.

Although Missouri’s constitutional language is very broad on the issue of providing government services to churches, as ThinkProgress’ Ian Millhiser wrote last year, the case was “an ideal vehicle for conservative lawyers to ask a conservative Supreme Court to endorse an expansive reading of the Constitution’s protections for churches.” The church was represented by the Alliance Defending Freedom (ADF), which supports recriminalization of homosexuality in the United States and has defended the state-sanctioned sterilization of transgender people.

Trump has signed many executive orders stressing religion. In May 2018, an executive order established a White House Faith and Opportunity Initiative, which consults with faith leaders. It also notifies the Attorney General of concerns from faith based and community organizations “about any failures of the executive branch to comply with protections of Federal law for religious liberty” as the Attorney General described in October of last year, when the Justice Department released its memorandum on religious freedom.

That memorandum was part of a broader effort that resulted from a May 2017 executive order that asks for agencies to work on “promoting free speech and religious liberty.” This order contained the words “deeply held beliefs,” words that have been used in bills and in cases fighting to enable discrimination against women and the LGBTQ community.

“We are giving our churches their voices back,” Trump said as he signed the order near two nuns who were from Little Sisters of the Poor, a plaintiff that took issue with the ACA’s contraception mandate, saying it would violate their religious beliefs to cover birth control as an employer.

Friday’s directive said that OFCCP staff can’t “condition the availability of [opportunities] upon a recipient’s willingness to surrender his [or her] religiously impelled status,” referring to the 2017 Trinity case, and must allow “faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for . . . [Federal] contracts,” referring to the establishment of a White House Faith and Opportunity Initiative. The directive will go through the normal rulemaking process, which includes public comment.

This directive is part of a string of agency decisions this year to focus on religious freedom. On Monday, the Labor Department appointed Steven Begakis as Wage and Hour Division policy adviser. Begasi has affiliations with the ADF, according to Bloomberg. He once wrote that the United States isn’t a free society for religious people and gave an example of “a Catholic business owner who refuses to pay for your employee’s abortion procedures.” 

On July 30, Attorney General Jeff Sessions announced that the Justice Department formed a task force to implement religious liberty guidance it introduced last year. In his announcement, Sessions referred to nuns being “ordered to buy contraceptives.”

In January, the Department of Health and Human Services announced the creation of a Conscience and Religious Freedom Division. In May, the People For the American Way and Right Wing Watch brought a lawsuit against The Department of Housing and Urban Development, who said administration officials are trying to imperil efforts to protect LGBTQ people, according to Newsweek. Activists said they want to know the reasoning behind why HUD removed a guidebook on training people on how to provide equal access to homeless shelters for transgender people and its elimination of pilot programs on decreasing LGBTQ homelessness.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

This article was originally published at ThinkProgress on August 13, 2018. Reprinted with permission.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.