The U.S. Department of Labor announced a critical proposed rule change on August 15 that would clarify protections for religious employers seeking federal contracts. 

The proposed rule unifies existing but scattered and, at times, ambiguous legal protections that protect religious organizations from some non-discrimination employment rules governing federal contractors. Many religious organizations providing essential services through federal contracts employ individuals who represent the ministry of the organization and therefore must either share confessional allegiance or embrace doctrinal teaching of the entity. 

The rule makes clear what the Constitution protects: religious employers may “condition employment on acceptance of or adherence to religious tenets without sanction by the federal government,” as long as they do not discriminate on the basis of race, sex, or national origin. And that “adherence to religious tenets” may legitimately include acceptance of the interpretation given to the tenant by the organization itself. That is critical to protecting religious liberty. Imagine if a Catholic migrant relocation and social services agency was obliged to hire a dissenting church member who advocated same-sex marriage or abortion? 

The rule covers more than churches or our houses of worship. It covers 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.”

A news release from DOL notes that the rule codifies disparate strands of well-established elements of religious liberty: 

The proposed rule is rooted in statute, Supreme Court decisions, and Executive Orders. The Civil Rights Act of 1964 includes a critical, protective exemption for religious organizations. A similar exemption is included in Executive Order 11246 and OFCCP’s regulations, which govern certain employment practices of federal contractors. Recent Supreme Court decisions – Masterpiece Cakeshop v. Colorado Civil Rights Commission, Trinity Lutheran Church v. Comer, and Burwell v. Hobby Lobby Stores – further address the protections afforded religious organizations and individuals under the Constitution and federal law. 

This is an enormously helpful development. The proposal is a mini crash course, of exceptional quality, on an important religious liberty issue with wide reaching implications. Readers are encouraged to submit supportive public comment to DOL, which may be made electronically here by September 16, 2019.  

Every submitted public comment helps. Suggested comment may read as simply as follows: 

Please adopt this proposed rule to clarify that faith-based organizations may make decisions and policy in accordance with their beliefs.

Or more elaborately, along these lines: 

Many faith-based organizations provide valuable services to assist the homeless, the hungry, victims of sexual abuse, and more. These faith-based services are valuable to the government because they are effective and because, by contracting out rather than expanding the government bureaucracy, they save taxpayer dollars. Forcing religious organizations to hire people who disagree with the tenets of their faith would undermine the service and, in many cases, force the faith-based organization to withdraw from providing such services. This proposed rule protects the ability of religious organizations to continue providing their valuable aid to people in need. 

This is an opportunity for all to be “in the trenches” fighting to protect religious liberty.