By Dr. Stanley Carlson-Thies

Nearly 110,000 comments on a seemingly obscure proposed change to the federal contracting regulations were recently received by the U.S. Department of Labor before the Sept. 16, 2019, cut-off date for public responses. No doubt many comments were cut-and-paste expressions of disgust or approval, sparked by this or that advocacy group. But there were also substantive comments, since the changes concern the hiring rights of religious contractors in the context of expanded LGBT rights. Although not many religious organizations are federal contractors (or subcontractors), the principle involved is important, as IRFA said in its comment.

The proposed amendments to the federal contracting regulations, announced in a Notice of Proposed Rulemaking (NPRM) on August 15, are designed to clarify the scope or substance of the religious exemption in those regulations. The exemption, adopted from Title VII of the 1964 Civil Rights Act, enables religious organizations to consider the religion of job applicants even though secular employers are required to not discriminate on the basis of religion when hiring and firing. When President Barack Obama in 2014 modified the contracting regulations (but not Title VII) to also ban employment discrimination on the bases of sexual orientation and gender identity, a new question was created: is it legal or illegal for a religious employer to reject an applicant for not following the employer’s religion-based sexual conduct requirements? The Obama administration said it was illegal, and some religious contractors then said that they would have to back away from contracting if they would not be able to ensure that their employees actually lived according to the religion.

The NPRM proposes to make it clear that those religious employers, and not the Obama administration, have the correct interpretation of the religious exemption. Some commentators and critics claim that the consequence will be the wrongful firing of LGBT employees and unmarried pregnant women. Others, such as IRFA in our comment, applaud the proposed changes as giving the correct and necessary meaning to the religious exemption, because the right to staff based on religion means little if all that an applicant has to do is to claim to follow the organization’s religious beliefs, no matter how he or she lives.

The proposed changes, in other words, only put into practice what the religious exemption means. And, as those changes also emphasize, it is only genuinely religious employers that can utilize the religious exemption. An organization that claims to be religious, but shows no sign of a religious purpose or practices, is not eligible for the exemption.

This exemption may only apply to a small subset of religious contractors and subcontractors, but the impact of this potential rule change comes down to principle: a religious organization should not have to abandon, or even diminish, its religious identity and religion-based operating practices in order to be eligible for federal contracts. The same principle should hold if LGBT employment discrimination is banned in federal grants—a form of federal funding that is much more widely received by faith-based organizations.

So what happens now? Federal officials will read through each of the nearly 110,000 comments (and counting) received and then decide whether to change or to maintain the proposed amendments (or, possibly, to withdraw the proposed changes entirely). If the proposed changes are not simply withdrawn, then in the eventual Final Rule the officials will describe or summarize the comments, state and explain their responses, and then confirm or change the proposed modifications to the regulations. While there was a 30-day period for comments to be made (sometimes the period is much longer), there is no time limit for the official response to those comments. However, the Trump administration early on promised to deal with the ambiguity in the federal contracting regulations and, having restated in the NPRM the importance of clarification, is likely to act quickly to promulgate a Final Rule that enacts the proposed changes. If so, this will be an important rules change not only for religious organizations that do or might contract or subcontract with the federal government but–as a precedent–also for the much larger set of religious organizations that do or might receive federal grants.

Dr. Stanley Carlson-Thies is the founder and senior director of the Institutional Religious Freedom Alliance, a division of the Center for Public Justice.