As Indiana Gov. Mike Pence faced a well-deserved national backlash this spring after signing a discriminatory “religious freedom” law, White House Press Secretary Josh Earnest rightly described the law as “not consistent with our values as a country that we hold dear.”
The very same statement applies to a legal opinion, carried over from the administration of President George W. Bush, that, regrettably, the Obama administration has allowed to remain in place for six and a half years. The memo, using the guise of religious liberty, explicitly authorizes taxpayer-funded discrimination.
In the closing years of the Bush administration, the Office of Legal Counsel within the Justice Department, the very same entity that produced the infamous torture memos, published a legal memorandum on June 29, 2007, that reached the erroneous and dangerous conclusion that the federal Religious Freedom Restoration Act of 1993 provides for a blanket override of nondiscrimination protections, specifically to allow a federal grantee to discriminate on the basis of religion in hiring with taxpayer dollars.
Even more disturbingly, since it was first published in 2007, the OLC memo has been cited by other federal agencies and extended to other programs and grants, including the reauthorized Violence Against Women Act last year. Even though VAWA includes a provision that bars organizations from engaging in employment discrimination on the basis of religion with VAWA funds, the OLC memo allows for the explicit text of the law to be ignored. It permits certain religiously affiliated organizations that receive VAWA funds to use religion as a criterion when hiring employees using taxpayer dollars.
This is taxpayer-funded discrimination plain and simple.
The U.S. Conference of Catholic Bishops, in comments to the Labor Department in March, cited the OLC memo to argue that it would violate RFRA to deny a federal contract to an organization that engages in anti-LGBT workplace discrimination. The bishops made this argument despite the fact that President Barack Obama signed a historic executive order last summer prohibiting entities that contract with the federal government from engaging in workplace discrimination on the basis of sexual orientation and gender identity.
Several grantees and contractors have also cited the OLC memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements in the context of health care for unaccompanied immigrant children who have suffered sexual abuse.
As a candidate, then-Senator Obama promised to end taxpayer-funded hiring discrimination because of the government’s profound and enduring commitment to upholding the bedrock civil rights principle that it must not fund discrimination. While President Obama has done much to advance fairness and equality for all Americans, he has, to date, allowed this deeply harmful legal memorandum to remain in place.
Today the ACLU, along with more than 100 other national organizations, wrote to President Obama to urge him to direct Attorney General Loretta Lynch to instruct OLC to review and reconsider this infamous legal opinion’s erroneous and dangerous interpretation of RFRA. Such a step represents the single most important action that President Obama could take in his remaining time in office to stop taxpayer-funded discrimination under the guise of religious liberty.
It is a step that is long overdue.