Originally posted on the Gender & Sexuality Law Blog on July 14th, 2014.
More than 50 legal scholars today strongly urged President Obama to resist calls for an overly broad religious exemption in a proposed executive order prohibiting sexual orientation and/or gender identity discrimination by federal contractors.
The effort is being spearheaded by Columbia Law School’s Center for Gender and Sexuality Law, as part of its recently launched Public Rights/Private Conscience Project. The new initiative is one of the first independent law school projects aimed at re-conceptualizing religious exemptions and the law, particularly as the exemptions impact reproductive and sexual liberty and equality rights.
In a letter signed by 54 legal scholars from around the country, Columbia Law School Professor Katherine Franke, Public Rights/Private Conscience Project Director Kara Loewentheil, and Brooklyn Law School Professor Nelson Tebbe argue that the broad exemption urged by some religious leaders and several law professors is not required by the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act (RFRA), or accommodations of religious liberty in other federal non-discrimination laws, including Title VII.
“The Supreme Court’s recent opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors,” said Franke. “Including an exemption for religious discrimination in an executive order securing work-place rights for LGBT people sends a message that the federal government has a more ambivalent commitment to sexual orientation and gender-identity based discrimination as compared with other forms of workplace equality.”
Loewentheil said the letter “reflects an emerging consensus among legal scholars that a proper balance between religious liberty and equal rights can be struck without creating carve-outs for religion in new laws protecting LGBT or reproductive rights.”
“We are delighted that many prominent scholars in the legal academy signed this letter,” Loewentheil said. “The views of these scholars provide responsible counsel to the White House as it considers the wording of an important new executive order securing LGBT and gender identity non-discrimination rules for employers who receive public funding.”