The U.S. Department of Labor’s Office of Federal Contract Compliance has issued a new directive on religious liberty that has LGBT advocates up in arms, claiming the directive constitutes “a license to discriminate.”
The OFCC is responsible for making sure those who do business with the federal government comply with anti-discrimination laws and rules. Those laws and rules prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.
But the new directive acknowledges that recent Supreme Court decisions and presidential orders have broadened the rights of “religion exercising” organizations and individuals, notwithstanding the traditional non-discrimination requirements. So what should the government do if an employer claims the anti-discrimination laws force him to violate his religious beliefs? The directive advises the OFCC compliance staff that they “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices” and must “proceed in a manner neutral toward and tolerant of…religious beliefs.
The directive also says compliance staff cannot “condition the availability of [opportunities] upon a recipient’s willingness to surrender his [or her] religiously impelled status…. They must permit ‘faith-based’ and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for…[federal] contracts.”
If the new order of things seems a bit murky, it is because it is. How the newly elevated status of religious practice vis-à-vis traditional minority rights will play out will necessarily be determined in real world cases. In short, the stage has been set for epic clashes between competing protections against discrimination.