Last week at National Review, our friend Ryan Anderson presented four major problems with President Obama's new executive order on sexual orientation and gender identity. The four biggest problems with the executive order, Anderson wrote, are:
1.) It undermines our nation's commitment to reasonable pluralism and reasonable diversity,
2.) It equates conscientious judgments about behavior,
3.) It does not contain a Bona Fide Occupational Qualification exemption, and
4.) It is unnecessary.
All Americans should be free to contract with the government without penalty because of their reasonable beliefs about morally contentious issues. The federal government should not use the tax code and government contracting to reshape civil society about controversial moral issues that have nothing to do with the federal contract at stake.
Sexual orientation and gender identity are unclear, ambiguous terms. They can refer to voluntary behaviors as well as thoughts and inclinations, and it is reasonable for employers to make distinctions based on actions. By contrast, “race” and “sex” clearly refer to traits, and in the overwhelming majority of cases, these traits (unlike voluntary behaviors) do not affect fitness for any job.
A Bona Fide Occupational Qualification (BFOQ) exemption, Anderson wrote, "allow employers to make employment decisions so long as those decisions are honestly related to job qualifications."
For example, Title VII of the Civil Rights Act contains a BFOQ that allows employers to take sex into account: hiring a female camp counselor at an all-girls sleep-away summer camp, for example, which might otherwise seem to be “sex discrimination.”
This new executive order presents an opportunity for Congress to act to protect conscience rights and religious liberty, Anderson argued:
Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting. This is the policy approach proposed by the Marriage and Religious Freedom Act (H.R. 3133, S. 1808).
This is indeed the time for Congress to move to protect conscience rights and religious liberty. The left is doubling down on their attacks on marriage supporters and religious liberty. America is healthier and freer when the law tolerates a diverse array of opinions and religious beliefs.