President Barack Obama (Diego M. Radzinschi / NLJ)
Correction: An earlier version of this story misreported Kara Loewentheil’s professional credentials. She is a research fellow at Columbia.
A group of law professors have sent a letter urging President Obama not to include a religious exemption in his promised executive order prohibiting federal contractors from discriminating on the basis of sexual orientation.
“Including such a [religious exemption] in newly expanded rights for LGBT [lesbian, gay, bisexual and transgender] employees of federal contractors would at once undermine workplace equity for LGBT employees, relegate LGBT protections to a lesser status than existing protections against discrimination, and allow religious employers to create or maintain discriminatory workplaces with substantial public funding,” the letter says.
Among its signatories were Harvard Law School professor Frank Michelman; former University of Texas School of Law dean Lawrence Sager; and University of Chicago Law School professor Martha Nussbaum.
Organizing the push were Columbia Law School professor Katherine Franke and Columbia research fellow Kara Loewentheil, along with Brooklyn Law School professor Nelson Tebbe.
“We are delighted that many prominent scholars in the legal academy signed this letter,” Loewentheil said. “The views of these scholars provide responsible counsel to the White House as it considers the wording of an important new executive order securing LGBT and gender-identity nondiscrimination rules for employers who receive public funding.”
The letter followed the U.S. Supreme Court’s recognition in Burwell v. Hobby Lobby of a right for closely held for-profit companies to a religious exemption from the Affordable Care Act’s contraceptive insurance mandate. The court reasoned that there were less restrictive ways to achieve the law’s aims.
The professors’ letter refers to that ruling and the court’s subsequent order allowing Wheaton College to refuse to formally opt out of contraception coverage on religious ground—the college argued that even that step, which would shift the onus to its insurer to pay for the coverage, would violate its beliefs.
Neither decision compels religious exemptions for federal contractors, the letter says, because they rested the court’s belief that the government could protect women’s health through other means.
“By contrast, there is no such alternative here,” the professors wrote. “Exempting religious employers would harm LGBT employees and it would frustrate the administration’s compelling interests in providing equal rights and protection against employment discrimination for LGBT people, particularly in taxpayer-funded situations.”
Moreover, no exemption is mandated by the First Amendment’s free-exercise clause, the Religious Freedom Restoration Act or other federal nondiscrimination law such as Title VII, the letter says.
“Including an exemption for religious discrimination in an executive order securing workplace rights for LGBT people sends a message that the federal government has a more ambivalent commitment to sexual orientation and gender-identity based discrimination as compared with other forms of workplace equality,” Franke said.