The decision by the U.S. Supreme Court that lets people form corporations to avoid legal liability while still acting on religious convictions like individuals has emboldened some believers on the right to think that they can discriminate against others using public money. They sought to weaken President Obama’s order prohibiting any private entity that voluntarily seeks public funds from excluding applicants for employment due to a religiously based prejudice.
The two issues are linked, but there are differences. I opposed the Supreme Court’s Hobby Lobby decision, in part because it seems to be a mistake to say that you can be a corporate entity for the purposes of limiting exposure you would face as an individual but still be an autonomous person when it comes to your political and religious beliefs. In particular, it’s a specious notion to believe that requiring corporations to sign a paper acknowledging that they have religious objections to supporting contraception is somehow a violation of the individual right to practice religion.
But as much as I hope that the Hobby Lobby decision preventing employees from receiving coverage for contraception is reversed, the argument against allowing federal contractors to impose their religious-based prejudice against other individual is a stronger one.
In the Hobby Lobby case, the federal rules required every employer to provide certain benefits to its employees, either directly, or through some indirect method. With regard to federal contractor funds, we are dealing here not with a rule that binds every entity in the country whether it has chosen to involve itself with the federal government or not. It’s a more limited proposal, which says if you volunteer to receive federal money for the performance of some secular function, you cannot refuse to hire otherwise qualified people – all of whom will have contributed through their taxes to that money – because you have some religious-based objection to them.
Obviously the major victims if this is allowed to go forward will be gay, lesbian, bisexual and transgender people who encounter religious objections in various forms.
I recognize there are individuals who for religious reasons disapprove of my marriage to Jim. I understand their disapproval, and I am equally strong in my disapproval of what I believe is the prejudice that motivates their disapproval. But if they choose simply to express that on their own, if they choose not to associate with us, that is not only acceptable to me, in the latter case, it is preferable.
That is not what we are talking about with regard to the president’s executive order. The argument is that if people take money from me – i.e., if they seek federal funds, which come in part from the taxes I pay – they cannot then refuse to hire me to perform the function for which the federal government is paying them because they do not think I should have been married. Once you allow people’s religious views to govern who they hire with federal money, there is no way to limit that. (We are not talking here about requiring the Catholic Church or Orthodox Jews to hire female clergy, since no federal funds can go to actual religious practices.)
The principle that applies is that if you voluntarily seek federal funding for nonreligious activities, you must not discriminate in hiring. You are entitled as a purely private matter to have religious objections to all manner of things; you are not allowed to use federal money to impose them.
Early in my congressional career I heard this explained by one of the great leaders in the fight for fairness in American, the late congressman Gus Hawkins of California. “If you are going to dip your fingers in the federal till,” Hawkins pronounced, “you can’t complain if a little democracy rubs off on them.”
If people have genuine religious objections that are so strong that they would find it impermissible to hire someone like me – or, as was the case in the past with religious objections, hire people who are part of an interracial couple, or for any other reason unrelated to people’s ability to perform the job – then the appropriate thing to do is to refrain from seeking federal money.
The president’s executive order does not require any entity to disregard any religious principle, but only that you treat all applicants fairly if you voluntarily decide to have the federal government provide funding to you for the performance of a secular duty. In fact, under President George W. Bush’s executive order, organizations have been able to give preference to people of their own religion.
But it is one thing to allow a religious organization to give some preference to its own members. It is an entirely other and more damaging one to say that they can single out members of certain groups – by definition, likely to be unpopular minorities – and deny them the right to work on these federally funded projects.
No one is arguing that religious organizations should be compelled to accept money that requires them to violate their principles. I am sorry to learn that there are religious organizations that have such principles – ones that require them to discriminate against some individuals – but we should not allow them to confuse their right to do so with their right to receive public subsidies in the process.
Barney Frank is a retired congressman and the author of landmark legislation. He divides his time between Maine and Massachusetts.