President Barack Obama (Diego M. Radzinschi / NLJ)
Editors’ Note: This article has been updated to reflect a Correction.
A group of law professors have sent a letter urging President Barack 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 said.
Organizing the push were Columbia Law School professor Katherine Franke and Columbia research fellow Kara Loewentheil, along with Brooklyn Law School professor Nelson Tebbe. Franke leads Columbia’s Center for Gender and Sexuality Law.
Other signatories from New York law schools include: Michael C. Dorf and Steven H. Shiffrin of Cornell; Jeremy K. Kessler, Patricia Williams, Claudia E. Haupt, Kendall Thomas and Suzanne B. Goldberg of Columbia; Barry Friedman and Stephen J. Schulhofer of New York University School of Law; and Caitlin E. Borgmann, City University of New York School of Law.
“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, 13-354, 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 (NYLJ, July 1).
The professors’ letter referred to that ruling and the court’s subsequent order allowing Wheaton College to refuse to formally opt out of contraception coverage on religious grounds—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 said, 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 said.
“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.
@|Karen Sloan is a reporter for The National Law Journal, an affiliate of the New York Law Journal. She can be reached at firstname.lastname@example.org.