House Should Continue Rejecting Amendments that Undermine Religious Liberty

May 22, 2016

Last Thursday, Republicans in the House of Representatives defeated an anti-religious liberty amendment offered by Rep. Sean Maloney (D-N.Y.) to the 2017 Military Construction and Veterans Affairs (MilCon/VA) appropriations bill (H.R. 4974). Though not immediately clear at first glance of the actual amendment text, the Maloney amendment would have further ratified an overreaching executive order issued by President Obama in 2014, which threatens religious liberty for private institutions who may contract with the federal government. As The Heritage Foundation's expert on religious liberty Ryan Anderson wrote in 2014,

"[President Obama's executive] order disregards the consciences and liberties of people of goodwill who happen not to share the government's opinions about issues of sexuality. All Americans should be free to contract with the government without penalty because of their reasonable beliefs about morally contentious issues."

How does the EO disregard conscious and liberty, infringe upon the First Amendment, and the free exercise of religion? 

There are at least 4 main policy problems, which Ryan Anderson also detailed last week after the Maloney amendment failed:

  1. "Obama's order and the Maloney Amendment undermines our nation's commitment to reasonable pluralism and reasonable diversity...
  2. Obama's order and the Maloney Amendment treat conscientious judgments about behavior as if they were invidious acts of discrimination akin to racism or sexism...
  3. Obama's executive order and the Maloney Amendment also do not contain any Bona Fide Occupational Qualification (BFOQ) exemption...
  4. Obama's executive order and the Maloney Amendment are unnecessary. Voluntary market forces are already eliminating true discrimination, as making employment decisions based on non-relevant factors hurts one's ability to compete."

Because of these significant policy and constitutional concerns, both Heritage Action and the Family Research Council scored against the Maloney Amendment when it came before the House for a vote. In our key vote—"NO" on Maloney Anti-Religious Freedom Amendment—we argued that:

"In July 2014, President Obama issued E.O. 13672 and unilaterally elevated sexual orientation and gender identity to special status for purposes of federal contracts. This means that federal bureaucrats could discriminate against, and strip contracts from, contractors that, for example, do not give biological men unfettered access to employee bathrooms designated for women. Congress has repeatedly voted down ENDA—the so-called Employment Non-Discrimination Act - to avoid forcing just such a radical national bathroom policy on American business.
"The Maloney Amendment would constitute Congress's acquiescence and ratification of the President's end-run around Congress. It constitutes bad policy that unnecessarily regulates businesses on sensitive matters. Finally it risks undoing the Russell Amendment which was included in the House-passed NDAA, which takes longstanding protections in civil rights law and makes clear that the president's orders are not exempt from them."

In fact, it was precisely because of these issues that Rep. Steve Russell (R-Okla.) offered the aforementioned amendment to H.R. 4909, the National Defense Authorization Act for Fiscal Year 2017. The Russell language reinforces religious freedom protections for religious organizations that receive federal contracts or grants. The amendment is short and well crafted—it simply takes existing religious exemptions from Title VII of the Civil Rights Act and also from the American with Disabilities Act, which have been in place for decades, and says that they continue to apply in the space of federal contracting. The Russell amendment won passage during the House Armed Services Committee markup and was preserved in the base bill when the NDAA passed the House by a vote of 277 to 147.

It was a strong step in the right direction to pass the NDAA with religious freedom protections—and that the MilCon/VA bill did not include language to erode such protections. The defeat of the Maloney amendment marks a momentum shift in the House Republican Conference towards getting these votes right. Last year, Rep. Scott Peters (D-Calif.) offered a Maloney-like amendment to the 2016 Transportation, Housing and Urban Development (T-HUD) appropriations act—and it passed with 60 Republican votes in the middle of the night. This misguided vote was partially due to lack of information and a late night vote. But now that both Congressmen and constituents know how dangerous these amendments are, only 29 Republicans voted for the Maloney amendment this year and the amendment failed. Next time a similar amendment is offered, there is no reason for any Republicans to vote in favor of it unless they support President Obama's executive order—which is an attack on religious liberty.

Moving forward, it will be critical that House Republicans continue to defeat any attempt by Democrats to further erode our First Amendment rights by codifying President Obama's executive order through the appropriations process. As we saw last week, undermining religious liberty is not a prerequisite to passing appropriations measures in the House. That said, House Republicans should expect Democrats to offer similar amendments on every appropriations bill moving forward, and must be prepared to defeat these amendments that threaten the very foundations of our civil society.

Instead of assisting President Obama's attacks on religious liberty, House Republicans should continue to both reactively beat back bad amendments on appropriation bills and also proactively pass the First Amendment Defense Act. House Republican Leadership should capitalize on the victory last week, set a new course for defending the First Amendment, and ensure additional victories in the weeks ahead.