Observers uncertain about the impact of Obama's employment orders on faith-based agencies
"The administration has forgotten that the Religious Freedom Restoration Act exists, and it's there to protect the religious freedom of groups, even when they contract with the federal government," said Erik Stanley, senior legal counsel for the Alliance Defending Freedom in Scottsdale, Arizona. He said his group would represent organizations challenged under the new rules.
A possible scenario that could lead to a lawsuit, Carlson-Theis said, is when a religious group interviews job candidates who say they are a "faithful" church members but also identify as transgender. If the employer doesn't hire such an applicant, the person could sue.
Schneck and other religious leaders signed a July 1 open letter to Obama asking for "a robust religious exemption" to the order, without which, the letter said, "this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom."
Michael Wear, a 2012 Obama campaign faith adviser who organized the open letter, lauded the continuation of the Bush-era executive order. But, he said, it would be up to the Labor Department and the Equal Employment Opportunity Commission to translate the executive order into rules and regulations that serve everyone's needs.
Absent such "clarity" from the two agencies, Wear said, "we risk opening up the doors for litigation that leaves both LGBT Americans and religious organizations uncertain and unprotected."
Religious schools, charities uncertain
Because of its application to contracts, including research contracts, many Christian colleges and universities are concerned about the order's effects, a statement from the Council for Christian Colleges and Universities in Washington said.
"There is no reason that the principles of a 2007 exemption memo from the federal attorney general's office, which says RFRA 'is reasonably construed' to exempt federal grantees from religious nondiscrimination requirements, should not also apply to federal contractors, but ultimately it will depend on the administration’s interpretation," the CCCU statement said.
Brigham Young University is awaiting that interpretation, spokesman Joe Hadfield said.
"We do have federal research contracts at BYU," Hadfield said. "It would be premature to say for sure how this executive order will affect future federal contracts with universities like BYU. We’ll know more when the Department of Labor issues regulations that guide the interpretation of this executive order."
Spokesmen for three of the largest Christian social service agencies that deal with federal contracts via USAID were silent Tuesday about the Obama order. A Samaritan's Purse spokeswoman said Franklin Graham was traveling and would need to consult with legal counsel before commenting.
"We have not yet received the order and as such have not had an opportunity to review the context," Jennifer Byrd, communications director for The Salvation Army's national headquarters in Alexandria, Virginia, said.
The church and social-services agency's overseas relief group, The Salvation Army World Service Office, is also a major contractor with USAID. So, too, is the Adventist Development and Relief Agency, which from 2001 to 2005 received more than $85 million in USAID contracts. Its management was weighing the Obama order's implications at a Tuesday meeting, a spokeswoman said.
Some groups will apparently avoid any problems by applying for federal grants, not contracts. Jenny Yang, vice president for advocacy and policy at Word Relief, a humanitarian group sponsored by the National Association of Evangelicals, said the organization is no longer a federal contractor, receiving USAID and State Department grants instead.
"We are not currently a federal contractor," Yang said. "Our general concern is that it's about religious freedom in general."
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