Today, the House descended into a fit of chaos that's quickly being characterized as a debate over sexual orientation and gender identity rights versus religious freedom. But the spectacle on the Hill appears to be much ado about nothing. It could be a sign of what's ahead in the transgender bathroom debate: lots of bluster and little substance.
Here's what happened. Two years ago, President Barack Obama issued an executive order that bans federal contractors from discriminating against their workers based on sexual orientation or gender identity.
Last week, the House passed a defense authorization bill. The measure was amended at the committee level to include a provision clarifying that a defense contractor that is also a “religious corporation, religious association, religious educational institution, or religious society” is allowed to take a candidate's religion into account in hiring decisions. That provision was offered by Rep. Steve Russell (R-Okla.).
Democrats countered during the full chamber vote last week with a motion to recommit—offered by Rep. Sean Maloney (N.Y.)—that would have stripped Russell’s language from the bill.
That’s when all hell momentarily broke loose. The motion appeared to pass narrowly before it didn’t. Democratic Whip Steny Hoyer (Md.) accused Republican leadership of holding the vote open after time expired and strong-arming a handful of their colleagues into switching votes at the last minute. A chorus of boos and hisses rained down from the left side of the chamber.
That brings us to last night, when 43 Republicans helped House lawmakers approve a Maloney amendment to another spending bill, on energy, to ensure that the funds not be used in a way that violates the executive order. An additional amendment confirming that the funds may not be used to violate the Religious Freedom Restoration Act also passed, but with only two Democrats crossing the aisle in support. That wasn't enough for some Republicans, who along with Democrats unhappy about other parts of the legislation, today voted the measure down altogether.
Lost in all the action is the simple fact that neither the religious exemption provisions nor the provision to enforce the executive order would do anything to alter the existing law. The executive order applies to all new federal contracts, regardless of whether a specific funding bill says so. The order updated a George W. Bush order that already includes the same exemption for religious employers, allowing them to take faith into account in making a hiring decision. The exemption is also included in Title VII of the 1964 Civil Rights Act, the federal law banning sex, race, religion and other forms of bias in employment.
In other words, the exemption and other protections for religious employers already apply to contractors, with or without the specific language in the spending bills.
Next up: futile finger-pointing. Sure, the allegation that Republican leaders bent voting rules and forced members to change their minds at the last minute is a significant one. There’s also some question about what it means to be a member of a religion under the executive order's exemption. Could a Catholic group working as a federal contractor refuse to hire an applicant who subscribes to the faith, but not its stance on abortion? The more significant religious challenge to LGBT protections likely comes under the RFRA, which the Supreme Court cited in its landmark decision shielding “closely held” corporations from the Affordable Care Act’s contraception mandate.
Both sides can also argue that the entire House should be in favor of protecting religious rights, as well as the rights of lesbian, gay, bisexual and transgender workers. If the religious amendments don’t change the law, why oppose them? On the other hand, why are they necessary in the first place? And why was language enforcing an executive order that’s already in place enough to sink the entire energy bill?
In the end, the guy who ran the chain gang in “Cool Hand Luke” would say what we really have here is a failure to communicate. A House divided over two measures that would have made no substantive change to the laws already on the books--if that strikes you as a colossal waste of time and energy, you’re likely right.
Then again it’s probably a good preview of the coming debate about which bathroom transgender people should be allowed to use: two sides talking over and around each other with very little actual progress.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
Notify me when updates are available (No standing order will be created).
Put me on standing order
Notify me when new releases are available (no standing order will be created)