by Stanley Carlson-Thies

Has the Obama administration decided to require federal grantees, like federal contractors, to hire without regard to sexual orientation and gender identity? A May 28, 2015, story says a decision has been made, but there is good reason to doubt that it has been or can be made.

The story, from C-FAM, the Catholic Center for Family & Human Rights, cites a confidential federal source as saying that “the White House is quietly moving forward with a policy change that will require charitable humanitarian groups to accept LGBT applicants in order to qualify for government funding, even those religious groups that might have religious objections.” The story links the insider’s tip with President Obama’s July, 2014, LGBT Executive Order that requires federal contractors not to discriminate on the bases of sexual orientation and gender identity when they make employment decisions, claiming that now federal grantees also will be subject to the same requirement.

Faith-based organizations are relatively rare in federal contracting, much of which involves services to the government, such as janitorial or IT services, or the procurement of buildings, military equipment, and other goods. But many faith-based organizations receive federal grant funding, either directly from the federal government, or through state or local government programs—funding to provide welfare services, child care, pre-K education, low-income housing, prisoner reentry programs, drug addiction services, overseas relief and development, and much more.

Many faith-based organizations consider religion when they make employment decisions, just as environmental groups consider how “green” an applicant’s principles and lifestyle are before extending a job offer. And the faith-based organizations’ religious convictions may extend to the view that sexual activity is meant to be preserved for man-woman marriage. If the Obama administration makes it illegal for recipients of federal grants to discriminate on the bases of sexual orientation and gender identity, will such faith-based organizations in effect be excluded from those grants—thousands or tens of thousands of faith-based organizations forced either to change their employment standards or to end partnerships with government that may have existed for decades because, for all those years, a federal, state, or local agency chose them as the best provider of some service needed by a family, person, or community?

A stealth decision, by definition, is difficult to verify. If the President does not issue an Executive Order and no other official statement is made by Administration officials, then the only evidence of the purported policy decision will be new restrictive language that appears in grant announcements and grant application forms. That has not happened—at least not yet. Readers of the eNews who discover language prohibiting sexual-orientation and gender-identity job discrimination in grant materials are urged to contact the eNews editor at info@irfalliance.org.

1. Presidents have set the nondiscrimination requirements in federal contracting going all the way back to World War II, but Congress has been responsible for determining nondiscrimination requirements in federal grants. Significantly, while the employment nondiscrimination requirements in federal contracting have consistently been expanded over the years, Congress has only added any such requirements to a small portion of grant programs, and those job nondiscrimination requirements have never included sexual orientation or gender identity.

It is true that Presidents sometimes add nondiscrimination requirements to grant programs in the process of deciding how to administer the programs Congress has enacted. For example, President George W. Bush issued an Executive Order requiring federal grantees not to discriminate on the basis of religion against persons eligible for those programs, and, through the regulatory process, turned that requirement into binding regulations in the various federal departments and agencies. But the requirement had already been enacted by Congress for several programs through the Charitable Choice language and, in the administration’s view, was required by the Constitution.

But there is no constitutional decision requiring the federal government to ensure that any organization that receives its funds not discriminate on the bases of sexual orientation and gender identity in making employment decisions.

2. Melissa Rogers, executive director of the White House Office of Faith-Based and Neighborhood Partnerships, has assured the eNews that the White House has made no decision to extend the restrictions on contractors to grantees.

3. C-FAM’s confidential informant says that the policy change “will require charitable humanitarian groups to accept LGBT applicants” in order to qualify for federal grants. Interestingly, in some of this fiscal year’s grant announcements from USAID—which awards money to humanitarian groups to provide overseas relief and development aid—there is a new requirement that overseas recipients of the grant funds not discriminate against LGBT people who apply for services. This is, for example, a new requirement in the ASHA program, which provides funds to overseas schools and hospitals that have a connection with a US organization.

This is a requirement about how beneficiaries are to be treated, and not a requirement about the employment policy of the grant recipients. So this language is not evidence that the LGBT Executive Order is being stretched to cover grants. The new requirement makes sense in the case of hospitals but not in the case of schools, which ought to be able to maintain their unique entrance requirements. (The requirement may not make sense in the many countries with a strong religious or moral disapproval of LGBT views and conduct—if the intent of the grants is to assist local organizations in such countries.)

Interestingly: the USAID policy document that is referenced as the justification for the new grant requirement: (a) has to do with contracts, not grants; (b) concerns employment, not beneficiaries; (c) only “encourages” certain action but doesn’t require it. In short: the justification has little if anything to do with the requirement!

4. It is important to note, in the case of grants as well as contracts, that the rules protect the right of religious employers to consider religion when hiring and firing, even if new restrictions are added with respect to sexual-orientation and gender-identity discrimination (some grant programs ban religious hiring, but FBOs can appeal to the Religious Freedom Restoration Act to avoid that ban). While strong voices inside and outside of the federal government claim that the new restrictions essentially mean that a religious employer cannot maintain a conduct requirement for employees that restricts LGBT conduct, courts have not ruled that the religious staffing right is a mere formality so that an applicant can avoid a religious organization’s faith-based sexuality standards simply by claiming to share the organization’s religious beliefs.

5. In short: there is no public evidence that the Obama administration will extend the LGBT Executive Order from federal contracting to federal grants, and there are good reasons to believe that such an attempt would override the bounds of normal executive-branch authority.

6. In this volatile area of policy, the lack of precedent and law provides no assurance that dramatic changes will not happen. Faith-based organizations must take a deep and careful look at their operations and take deliberate action to ensure that there is a strong alignment between their religious beliefs, their operational policies, and their actual practices. Their religious identity ought to be clear to everyone, inside and outside the organization, and the religiously based rationale for their policies and practices ought to be evident to anyone who takes a look.