Public comment: Oppose "Religious Exemption" rule that will allow workplace discrimination

The Department of Labor is proposing a new rule for federal contractors — including for-profit corporations, schools, agencies, societies, nonprofits, & etc — granting them the right to discriminate on the basis of *their* religious beliefs if they declare that they adhere to religious principles in how they conduct their business. Under the proposed rule, they can not only “prefer in employment individuals who share their religion,” but also “condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor”. Thus, employers could deter people of a certain race, gender, sexual orientation or religion from applying for work. And they could fire employees for things like becoming pregnant without being married, or coming out as gay.

Right-wing fundamentalists and white supremacists are mobilizing their base to support this rule. This makes it even more crucial that you speak out.

Please comment directly on the proposed change with your own original comment in your own words. Well-informed, original public comment can help stop bad policy—the administration must address every point made, and arguments made and facts cited in public comments can be cited in court briefs. Public comment works—let’s keep doing it! The deadline is September 16, 2019.

When this rule is challenged in court the number of people who publicly opposed it will have some influence on the decision. Therefore it is important that people of conscience speak up in defense of civil rights, true religious liberty and, the separation of church and state.

Under the Civil Rights Act and subsequent laws and regulations it is illegal to discriminate against people based on religion. But there has long been a common-sense “religious belief” exception so that a church seeking to hire a minister could require that applicants be of a certain faith. At the behest of Christian fundamentalists, Republicans and their Supreme Court majority have been steadily widening the religious belief exception far beyond its original intent and purpose. The 2014 Hobby Lobby case allowing a corporation to practice religious discrimination and the 2018 cake and flower shop cases allowing business to refuse services to LGBTQ customers being recent examples. This new policy is just another step in eroding civil rights and the separation of church and state.


Department of Labor “Religious Exemption Rule”

Here are some salient quotes that bear pondering:

Among other changes, this proposal is intended to make clear that the Executive Order 11246 religious exemption covers not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose. It is also intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, …

...the proposed rule states that it should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws. While only a subset of contractors and would-be contractors may wish to seek this exemption, the Supreme Court, Congress, and the President have each affirmed the importance of protecting religious liberty for those organizations who wish to exercise it. 

[The rule] proposes defining “Religion” to provide that the term is not limited to religious belief but also includes all aspects of religious observance and practice. Building on the proposed definition of “Religion,” [the rule] proposes to define “Particular religion” to clarify that the religious exemption allows religious contractors not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.

... the proposed definition of “Religious corporation, association, educational institution, or society” seeks to clarify which organizations can qualify for the religious exemption. … [The rule] agrees … that it would be inappropriate and constitutionally suspect for  [the rule] to contradict a claim, found to be sincere, that a particular activity or purpose has religious meaning. … the contractor must be organized for a religious purpose, meaning that it was conceived with a self-identified religious purpose. This need not be the contractor's only purpose. A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used. … A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used. … A contractor can satisfy this requirement in a variety of ways, including by evidence of a religious purpose on its website, publications, advertisements, letterhead, or other public-facing materials, or by affirming a religious purpose in response to inquiries from a member of the public or a government entity. 

The proposed definition of “Exercise of religion” also clarifies that the touchstone for religious exercise is sincerity, and therefore an exercise of religion must only be sincere. As the Supreme Court has repeatedly counseled, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”... the critical inquiry for [the rule] is whether a particular employment decision was in fact a sincere exercise of religion. [the rule], like courts, “merely asks whether a sincerely held religious belief actually motivated the institution's actions.” … In assessing sincerity, [the rule] takes into account all relevant facts, including whether the contractor had a preexisting basis for its employment policy and whether the policy has been applied consistently to comparable persons, although absolute uniformity is not required.