House Defense Bill Seeks to Protect Contractor 'Religious Freedom'

Tucked inside a House committee’s markup of the fiscal 2017 National Defense Authorization Act is language aimed at “clarifying” the religious rights of federal defense contractors who feel pressured to comply with an executive order addressing religion and discrimination.

Rep. Steve Russell, R-Okla., offered language cleared by the House Armed Services Committee on Thursday that he said would make sure religious “corporations” or “associations” that are service providers and contractors are not unfairly discriminated against as agencies implement  President Obama’s 2010 executive order on policymaking criteria for partnerships with faith-based and other neighborhood organizations.

“Unfortunately, guidance from the Office of Federal Contract Compliance Programs, however well-intended, has caused confusion on the president’s executive order regarding religious contractors within the scope of their protections under law,” Russell said before the 33-29 panel vote.

“The guidance also violates the ‘compelling interest’ standard with regard to the Free Exercise clause of the First Amendment as set forth in multiple Supreme Court rulings that quote ‘unduly burdens the practice of religion.’”

Russell said he applauded President Obama’s recent “affirmation and concern of misinterpretations as they apply to nine departments and agencies.” But “this amendment eliminates the ambiguity within DOD by tying the existing protections that have been well-established for decades under” the Civil Rights Act and the Americans with Disabilities Act.

Democrats, backed by two Republicans on the panel who voted no, criticized Russell’s approach.

Panel Ranking Member Rep. Adam Smith, D-Wash., said, on Friday, “Democrats fought against efforts to expand religious organizations’ ability to conduct taxpayer funded discrimination against LGBT individuals, women, and other groups.”

Opposition was also heard from gay and lesbian rights activists who warned of intended and unintended consequences. Russell’s amendment “would strip away existing protections for LGBT workers by undermining President Obama’s executive order on LGBT non-discrimination protections in federal contracting,” said Human Rights Campaign Government Affairs Director David Stacy. “Evidently some House Republicans want to emulate their state legislative colleagues in undermining legal protections for LGBT Americans. House Republican Leadership must get this language out of the bill.”

The Washington Blade’s coverage predicted problems in the language requiring the government to afford religious contractors exemptions under the Civil Rights and Americans with Disabilities Act. “Since neither of those laws prohibits anti-LGBT bias, the amendment would enable religious organizations doing business with the U.S. government to discriminate on the basis of sexual orientation or gender identity,” wrote Blade White House correspondent Chris Johnson.

White House spokesman Jeff Tiller told the Blade the administration opposes “attempts to roll back non-discrimination protections for LGBT workers.”

The Professional Services Council, a major contractors group, said it takes no position on the Russell amendment on freedom of religion.

Correction: The initial version of this story conflated two amendments debated during the House Armed Services Committee’s markup of the fiscal 2017 National Defense Authorization Act. The Russell amendment relates to a 2010 executive order on partnerships with faith-based groups, not the 2014 Fair Pay and Safe Workplaces executive order. References to that executive order have been removed.