Defense Bill LGBT Dust-Up Much Ado About Nothing, Republican Says

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By Chris Opfer

Oct. 27 — The lawmaker behind a controversial measure ( H.R. 4909) that would shield religion-affiliated contractors from a ban on sexual orientation discrimination doesn’t understand what all of the fuss is about.

“People have totally mischaracterized what’s going on with it,” Rep. Steve Russell (R-Okla.) told Bloomberg BNA Oct. 27, referring to his amendment to a must-pass defense spending bill. “I don’t know what emotional minefields were in place before I got here, but I must have struck a nerve on those previous fights because this changes nothing in the current law.”

The amendment—included in a House version of the Defense Authorization Act—is threatening to sink a must-pass bill that’s been signed into law in each of the last 54 years. A conference committee is working to iron out the differences between the House version of the bill and separate legislation passed in the Senate.

Democrats and civil rights groups have criticized the amendment, which they say promotes taxpayer-funded discrimination by allowing religion-based and potentially other contractors to take faith into account in personnel decisions. They’re particularly concerned that covered contractors would be permitted to make hiring and other decisions based on workers’ personal relationships and reproductive health decisions.

“The bottom line is that this is a wolf in sheep’s clothing,” Rep. Sean Maloney (D-N.Y.), who railed against the amendment on the House floor, told Bloomberg BNA Oct. 27. “He either doesn’t understand his own amendment or he doesn’t really know what it does.”

Russell said the measure simply reinforces religious exemptions already included in laws banning workplace discrimination. He also noted that it applies only to religious corporations, associations, educational institutions and societies.

Law on Books Unclear

The dispute over Russell’s amendment reflects broader debates about whether federal law already protects workers from sexual orientation and gender identity discrimination on the job. That includes unsettled questions about the extent to which employers can make decisions based on their own religious leanings.

The Equal Employment Opportunity Commission takes the position that the ban on sex discrimination in Title VII of the 1964 Civil Right Act extends to sexual orientation and gender identity. That issue is currently pending before three separate federal appeals courts.

President Barack Obama in 2014 issued an executive order banning sexual orientation and gender identity discrimination by federal contractors. It updated a previous order from President George W. Bush to expand bias protections but kept in place a provision exempting religious groups.

Russell’s amendment would require government agencies to apply the executive order in a way that’s “consistent” with Title VII and the Americans with Disabilities Act. Since those laws don’t expressly ban sex orientation and gender identity discrimination, Maloney said the provision could be read to scrap all protections for LGBT workers.

“This is an effort to write discrimination against the LGBT community into federal law,” Maloney said.

Critics also are concerned that the language could be used to allow closely held private companies to discriminate against workers based on executives’ religious beliefs. They point in particular to a 2014 decision by the U.S. Supreme Court, in which the justices said the government could not force a hobby store chain to cover workers’ contraceptive costs under the Affordable Care Act ( Burwell v. Hobby Lobby Stores Inc., 2014 BL 180313 (2014)).

Russell said he became aware of the issue when religion-affiliated constituents who provide refugee services and offer mental health and substance abuse counseling to soldiers under federal contracts raised concerns about whether they could use faith preferences in hiring decisions. He said that an organization like Catholic Charities USA, as a hypothetical example, should not be forced to consider a Southern Baptist for a position slated for a Catholic nun.

When asked in a Bloomberg BNA interview, Russell didn’t clarify whether the same organization could consider a job applicant’s sexual orientation or reproductive health decisions as part of the worker’s religious beliefs.

Russell said during the interview that he reached out to Maloney’s staff to try to meet with the lawmaker to discuss their differences. Maloney, also reached by a phone interview, said his staff has “no record” of any communications.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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