Last week, President Obama announced his plans to issue an executive order that would prohibit federal contractors from considering sexual orientation or gender identity in hiring decisions. The NAE met with White House officials to provide input, and leaders from a long list of organizations and denominations signed a letter to the president asking for robust religious freedom protections in any executive order.

The Honorable Barack Obama
President of the United States of America
The White House
Washington, DC 20500

by email, c/o Melissa Rogers, Executive Director, White House Office of Faith-Based and Neighborhood Partnerships

Dear Mr. President:

As leaders and supporters of faith-based service organizations, we ask that you include explicit religious freedom protections in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors. We have a variety of views on the merits of such an executive order. However, we are united in asking that any such executive order be written in a way that protects the religious freedom of faith-based service providers. Any executive order that does not fully protect religious freedom will face widespread opposition and will further fragment our nation.

Our requests are grounded in the historical context of strong federal legal protections for religious organizations’ hiring practices. Under the Civil Rights Act of 1964, as upheld by a unanimous Supreme Court,[1] religious organizations are free to consider religion when deciding who is most qualified to join their respective staffs. They are free under Title VII to maintain a conduct standard that reflects their religions’ sincerely held beliefs, which include deep convictions about human sexuality.

Also by a unanimous vote, the Supreme Court recently reaffirmed that, even in the context of federal nondiscrimination laws, both the Free Exercise and Establishment Clauses protect the right of religious organizations to hire ministerial staff according to their religious beliefs and standards of conduct.[2] The Court acknowledged that nondiscrimination laws are “undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”[3] While the courts have not precisely defined the scope of “ministerial staff,” the Supreme Court’s emphatic recognition of the constitutional protection that is due to the beliefs of religious groups and to their choices of key staff strongly supports our request for the language we propose below.

To its credit, your Administration has continued to respect this vital element of religious freedom by leaving intact the 2002 amendment to Executive Order 11246 that clarified that religious organizations that utilize their freedom under the religious exemption of Title VII of the 1964 Civil Rights Act are nonetheless eligible to be federal contractors or subcontractors.[4] As a result, faith-based organizations that consider religion in their employment decisions continue to contract with the federal government. The vital services that religious organizations provide when acting as federal contractors include: 1) overseas relief and development services in partnership with USAID (which increasingly employs contracts as well as grants); 2) services on contract with the Bureau of Prisons; and 3) research, technical assistance, and other services via contracts and subcontracts with other federal departments and agencies. Many of these religious organizations maintain employee moral conduct standards along with their requirement that staff members agree with the organizations’ religious commitments.

These organizations often are the best-qualified applicants for federal contracts or subcontracts. It would be counterproductive to bar them from offering their services to the federal government simply because of their legally protected religious convictions; it would be wrong to require them to violate those legally protected convictions in order to be eligible to receive federal contracts. Their exclusion from federal contracting would be diametrically opposed to the Administration’s commitment to having “all hands on deck” in the fight against poverty and other dire social problems.

Specifically, we request that any LGBT executive order respect religious freedom by providing the following concrete protections for faith-based service organizations:

1. Exemption language for religious organizations similar to that recently adopted by the Senate. This is necessary so that the executive order does not have the effect of excluding faith-based organizations that exercise their constitutional and Title VII right to have religiously grounded employee belief and conduct requirements. In passing the Employment Non-Discrimination Act (S. 815), the Senate respected religious freedom and accommodated many religious organizations by exempting them from the proposed nondiscrimination requirements as follows (as adapted to reference the Executive Order):

This Executive Order shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)).[5]

2. A non-retaliation clause. A religious exemption will only be meaningful if organizations that claim it are not punished for asserting their rights. Therefore please include a non-retaliation provision, similar to that passed by the Senate in S.815:

A religious organization’s exemption hereunder shall not result in any action by a federal agency, to penalize or withhold licenses, permits, certifications, accreditation, grants, guarantees, tax-exempt status, or any other benefits or exemptions from that organization, or to prohibit that organization’s participation in programs or activities sponsored by that federal agency.

3. Purposes language. Please include in the executive order the purposes language adopted in ENDA by the Senate. The Senate clarified that its purpose in adopting ENDA was not only to eradicate wrongful employment discrimination but also:

“to reinforce the Nation’s commitment to fairness and equal opportunity in the workplace consistent with the fundamental right of religious freedom.”[3]

4. Construction language. Because the manner in which courts are to balance these rights is contested, we request the following language to underscore this Administration’s intent to protect religious freedom in the context of any LGBT executive order:

Nothing in this Executive Order shall be evidence of or construed to establish a compelling government interest with respect to a claim under the First Amendment of the Constitution of the United States or under the Religious Freedom Restoration Act of 1993 (42 U.S.C. §2000bb et seq.).

Mr. President, you have spoken eloquently of your commitment to protecting religious liberty, our nation’s first freedom. As you seek to promote the rights of LGBT persons, please also protect the rights of faith-based organizations that simply desire to utilize staffing practices consistent with their deep religious convictions as they partner with the federal government via contracting or subcontracting.

Thank you for considering our concerns and recommendations. We stand ready to discuss these suggestions with the appropriate member of your Administration.

Sincerely,

Stanley Carlson-Thies
President, Institutional Religious Freedom Alliance

Leith Anderson
President, National Association of Evangelicals

Galen Carey
Government Relations, National Association of Evangelicals

Rabbi Abba Cohen
Vice President for Federal Affairs and Washington Director, Agudath Israel of America

Nathan Diament
Executive Director for Public Policy, Union of Orthodox Jewish Congregations of America

Rev. Samuel Rodriguez
President, National Christian Hispanic Leadership Conference and Hispanic Evangelical Association

Noel Castellanos
CEO, Christian Community Development Association

Ron Sider
President Emeritus, Evangelicals for Social Action

Dwayne Leslie
Director of Legislative Affairs, General Conference of Seventh-day Adventists

Joel C. Hunter
Senior Pastor, Northland – A Church Distributed

David Nammo
Executive Director/CEO, Christian Legal Society

Kimberlee Colby
Director, Center for Law & Religious Freedom, Christian Legal Society

Carl H. Esbeck
R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law,
University of Missouri

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science, University of Notre Dame

Douglas Laycock
Robert E. Scott Distinguished Professor of Law, University of Virginia Law School

Michael McConnell
Richard & Frances Mallery Professor of Law and Director of the Constitutional Law Center, Stanford Law School

Dan Busby
President, Evangelical Council for Financial Accountability

William “Bill” P. Robinson, Ph.D.
Interim President, Council for Christian Colleges & Universities

Roy Alden Atwood, Ph.D.
President, New Saint Andrews College

William L. Armstrong
President, Colorado Christian University

Shirley A Mullen
President, Houghton College

Dr. Jules Glanzer
President, Tabor College

Robert G. Duffett
President, Eastern University

Gordon L. Anderson, Ph.D.
President, North Central University

David S. Dockery
President, Trinity International University

Bob Brower, Ph.D.
President, Point Loma Nazarene University

Dr. Nicholas V. Kroeze
President, Kuyper College

Dr. Kenneth A. Smith
President, Geneva College

Ms. Joye Huston
Chair, Board of Trustees, Geneva College

Stephen D. Livesay, Ph.D.
President, Bryan College

Dr. Charles W. Pollard
President, John Brown University

Dr. Barry H. Corey
President, Biola University

Dr. Erik Hoekstra
President, Dordt College

Gregg A. Chenoweth, Ph.D.
President, Bethel College

Dr. Brent Ellis
President, Spring Arbor University

Jay Barnes
President, Bethel University

Dr. D. Joel Wiggins
President, Crown College

Dean C Collins
President, Point University

Lawrence E. Ressler, Ph.D.
Interim President, East Texas Baptist University

Dr. Michael K. Le Roy
President, Calvin College

Dr. Michael G. Scales
President, Nyack College

Jerry C. Davis
President, College of the Ozarks

Derek Halvorson, Ph.D.
President, Covenant College

Dr. J. Paul Nyquist
President and CEO, Moody Bible Institute

Dr. Richard L. Gathro
Director, Washington DC Program, Pepperdine University

Robert C. Andringa, Ph.D.
President Emeritus, Council for Christian Colleges & Universities

Dr. Carl E. Zylstra
Executive Director, Association of Reformed Colleges and Universities

Gaylen Byker
President Emeritus, Calvin College

Chad Hayward
Executive Director, Accord Network

Stephan Bauman
President/CEO, World Relief

Rich Stearns
President, World Vision, Inc. (US)

Ms. Jacinta Tegman
President, World Concern

Mr. Chok–Pin Foo
President & Chief Executive Officer (Interim), MAP International

John L. Dallmann
President/CEO, Engineering Ministries International

Kurt E. Kandler
Executive Director, The 410 Bridge, Inc.

Dr. Maurice L. “Marty” Martin
CEO, Food for the Hungry

Franklin Graham
President and Chief Executive Officer, Samaritan’s Purse/The Billy Graham Evangelistic Association

Steve Moore
President, Missio Nexus

John Ashmen
President, Association of Gospel Rescue Missions

William J. Blacquiere
President and CEO, Bethany Christian Services

Hal Donaldson
President, Convoy of Hope, Inc.

Don Argue
Ambassador At Large, Convoy of Hope

Tim R Culbreth
Interim President Teen Challenge USA, and on Behalf of the Board of Directors

Bruce Miller
CEO, Lawndale Christian Health Center

Andrew Sears
Executive Director, TechMission

Michael A. Sohm
President, CAMA Services, Inc

Stephanie Summers
CEO, Center for Public Justice

Randall Kroll
Trustee, Center for Public Justice

Carol Veldman Rudie
Trustee, Center for Public Justice

Nicholas Wolterstorff
Trustee, Center for Public Justice

Michelle Kirtley
Trustee, Center for Public Justice

Vincent Bacote
Trustee, Center for Public Justice

Terrence Woodnorth
Trustee, Center for Public Justice

Cherie Harder
President, The Trinity Forum

Karen Woods and Terri Rudacill
Principals, Cornerstone Community Resources, L3C

Bill Anderson
Executive Mentor & Advisor to CEOs & Boards, Bill Anderson Leadership Consulting Inc.

Dr. Robert Osburn
Executive Director, Wilberforce Academy

Doug Nuenke
U.S. President, The Navigators

Michael J. Kozlarek
Associate Director of Collegiate Ministries, The Navigators

Dr. R. Bryan Bademan
Executive Director, The MacLaurin Institute

Dr. Dan Egeler
President, Association of Christian Schools International

Dr. Thomas J. Cathey
Chief of Staff and Director for Legal/Legislative Issues, Association of Christian Schools International

Keith Wiebe
President, American Association of Christian Schools

Carl Nelson
President & CEO, Transform Minnesota: the evangelical network

Ron Boehme
Director, Youth With A Mission U.S. Renewal

Paul A. Cedar
Chairman/CEO, Mission America Coalition

David H. Cyr
Executive Director, NAE Chaplains Commission

Arthur Evans Gay
Minister at Large, Evangelical Initiatives Int’l

Gregory Johnson
President/Founder, Standing Together

Daniel Henderson
President, Strategic Renewal

Luder Whitlock
President, Excelsis

Dwight Burchett
President, California Association of Evangelicals

Rudy Carrasco
Managing Director, Two Forty Group

Mark D. Taylor
President/CEO, Tyndale House Publishers, Inc.

Jo Anne Lyon
General Superintendent, The Wesleyan Church

Robert W. McIntyre
General Superintendent Emeritus, The Wesleyan Church

David Wilson
General Secretary, Church of the Nazarene

George O. Wood
General Superintendent, Assemblies of God

A.D. Beacham, Jr.
Presiding Bishop, International Pentecostal Holiness Church

Roy Taylor
Stated Clerk, Presbyterian Church in America

Joseph Tkach
President, Grace Communion International

John Stumbo
President, Christian & Missionary Alliance

Don Morris
Interim Executive Director, US Conference of Mennonite Brethren Churches

Larry Roberts
Chief Operating Officer, Free Methodist Church-USA

Rocky Rocholl
President, Fellowship of Evangelical Churches

William J. Hamel
President, Evangelical Free Church in America

Larry G. Hess
Field Director for Europe, Church of God International Offices, Cleveland, TN

Clyde M. Hughes
General Overseer, International Pentecostal Church of Christ

Wayne Evans
General Superintendent, Evangelical Friends Church, Eastern Region

Steven Jones
President, The Missionary Church, Inc.

Randall Bach
President, Open Bible Churches

John Hopler
Director, Great Commission Churches

Rev. Dr. Jason A. Poling
Senior Pastor, New Hope Community Church (Baltimore); Past President, Eastern Region, Evangelical Theological Society

Rev Glenn M. Coleman
Presbyterian Church USA

Tony Wood
Teaching Pastor, Church at the Mission/Tustin

Pastor Justin Frank
The Community Church of East Gloucester, Massachusetts

Winnie Bartel
Representative, Mennonite Brethren Church

Dharius Daniels
Senior Pastor, Kingdom Church

Ron Hamilton
Conference Minister & Director of Church Multiplication, Conservative Congregational Christian Conference

John K. Jenkins, Sr.
Senior Pastor, First Baptist Church of Glenarden

David W. Kendall
Bishop, Free Methodist Church-USA

Bill Lenz
Senior Pastor, Christ the Rock Community Church

Kevin McBride
Senior Pastor, Raymond Baptist Church

Alan J. Rockman
Elder, Christ The Rock Community Church; Board Member, Cresendo Music Inc.

David T. Roller
Bishop, Free Methodist Church-USA

Matthew A. Thomas
Bishop, Free Methodist Church-USA

Jim Tolle
Senior Pastor, El Camino Metro

Phil Whipple
Bishop, Church of the United Brethren in Christ

Reverend Kurt Monroe
Pastor, Valley Christian Reformed Church, Binghamton, NY

Mark Young
President, Denver Seminary

Jay Van Groningen
Former Executive Director, Communities First Association

David Neff
Editor-in-chief, Retired, Christianity Today

Case Hoogendoorn
Senior Partner, Hoogendoorn & Talbot LLP

Bruce Van Heukelem
Partner, Hoogendoorn & Talbot LLP

Kevin J. Todd
Hoogendoorn & Talbot LLP

Dr. Stephen V. Monsma
Senior Research Fellow, The Paul Henry Institute for the Study of Christianity and Politics, Calvin College

Dr. James K.A. Smith
Professor of philosophy, Calvin College

Byron Johnson, Ph.D.
Director, Institute for Studies of Religion; Director, Program on Prosocial Behavior; Distinguished Professor of the Social Sciences, Baylor University

Thomas F. Farr
Director, Religious Freedom Project, Berkley Center for Religion, Peace and World Affairs, Georgetown University

(Affiliations with universities are listed for identification only. No signer of this letter claims to speak for the university at which he or she is employed.)


[1] Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). 
[2]  Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012). [3] Id., 710.
[4] The amendment was made in a section of Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations (Dec. 12, 2002).
[5] The Employment Non-Discrimination Act of 2013 (S. 815), Sec. 6(a).
[6] Id., Sec. 2(4).