Rep. Amash writes about discrimination:
Genuine policy disagreements with my colleagues are not what make my job difficult on any given day; rather, it’s having to counter the steady stream of misinformation and disinformation coming from politicians, DC groups, and the media about legislation.
Much of the problem arises from the fact that most members of Congress and most reporters don’t (and won’t) read the legislation being voted on or discussed. But even worse, some organizations and individuals intentionally mislead the public, using partisanship and emotions as weapons to capture donors and advertisers.
The latest example concerns the Maloney amendment, which Rep. Sean Patrick Maloney has offered to recent appropriations (spending) bills. I’ve prepared this post to separate fact from myth with respect to this amendment and related issues.
● Didn’t the Obama administration recently tell schools that they need new restroom policies to deal with gender identity issues?
Yes, and I strongly oppose this guidance. The Constitution does not grant the federal government authority over schools.
● Is the Maloney amendment about schools or the recent Obama administration guidance?
No. The Maloney amendment has nothing to do with schools or this guidance.
● Has Congress passed anything like the Maloney amendment before?
Yes. Rep. Scott Peters offered the same amendment on June 9, 2015. The House adopted the amendment, which then was incorporated into the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act for Fiscal Year 2016. And while I voted no on this wasteful spending bill, the vast majority of House Republicans voted yes despite the inclusion of the Peters amendment. Put simply, 213 Republicans already voted in favor of a bill that included a provision just like the Maloney amendment.
● So, what is the Maloney amendment about?
It’s related to a series of executive orders going back decades, including one from 2014, that provide for nondiscrimination in federal employment and in employment by federal contractors. To the extent that it does anything, the Maloney amendment affirms the principle that these policies should apply consistently with respect to work done for the federal government using taxpayer funds. In its entirety, the Maloney amendment reads:
None of the funds made available by this Act may be used in contravention of Executive Order No. 13672 of July 21, 2014 (“Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity”).
● Aren’t you against executive orders?
No, though many bad ones have been issued. Executive orders are part of our constitutional system. An executive order is simply an order from the president to federal agencies to carry out (execute) federal law. While some executive orders are illegal, an order is valid and legally binding if the Constitution or federal law grant the president power and federal law does not otherwise prohibit his or her actions.
● How do you feel about nondiscrimination laws?
As a libertarian, I believe that nondiscrimination laws generally do more harm than good. The Civil Rights Act of 1964 was helpful in remedying government-mandated discrimination in some states. Today, however, these types of laws may unintentionally increase discrimination. A business may avoid hiring people from a protected class to reduce the risk of being sued, and government-driven identity politics may lead people to resent each other. Thanks to the Internet and social media, markets can rapidly punish discrimination without government intervention.
● Under our Constitution and federal law, who has the power to set nondiscrimination policies in federal employment and in employment by federal contractors?
● Could Congress pass a law to override the nondiscrimination executive order from 2014?
Yes, but Congress has not done so.
● Which executive orders prohibit discrimination in federal employment and in employment by federal contractors?
Since the 1960s, presidents have advanced these nondiscrimination policies by issuing and amending two executive orders, Pres. Richard Nixon’s Executive Order No. 11478 (federal employment) and Pres. Lyndon Johnson’s Executive Order No. 11246 (federal contractors). Pursuant to federal law and executive order, the federal government has prohibited discrimination on the basis of race, color, religion, sex, national origin, handicap (disability), and age.
On May 28, 1998, Pres. Bill Clinton issued Executive Order No. 13087, which amended the federal employment executive order to prohibit discrimination on the basis of sexual orientation.
On July 21, 2014, Pres. Barack Obama issued Executive Order No. 13672, which amended the federal contractors executive order to prohibit discrimination on the basis of sexual orientation. It also amended the federal employment and federal contractors executive orders to prohibit discrimination on the basis of gender identity.
● Does any religious liberty protection apply to these executive orders?
Yes. On December 12, 2002, Pres. George W. Bush issued Executive Order No. 13279, which amended the federal contractors executive order to add a religious liberty protection, permitting religious organizations to employ only individuals who hold particular religious beliefs. Pres. Obama affirmed the continued application of this religious liberty protection when he issued his executive order.
● Is there more that Congress can do to protect the religious liberty of federal contractors and others?
Yes. Congress can and should pass additional religious liberty protections for activities that are not within the scope of taxpayer-funded government directives. In addition, Congress can and should provide organizations with maximum deference in complying with nondiscrimination laws and policies. We don’t need the federal government’s dictating implementation; the market can resolve compliance issues far more effectively and efficiently than government.
● Does the Maloney amendment ratify and codify the Obama executive order as the Heritage Foundation alleges?
No. The Maloney amendment cannot ratify and does not codify the Obama executive order. It cannot ratify (make officially valid) the executive order, because the order does not require congressional ratification for validation. It does not codify (put into law) the executive order, because this type of amendment is what’s called a limitation amendment; it limits funds in the particular appropriations bill from being used (for one year) in contravention of the executive order. This limitation has no practical effect, because the current president intends to follow his own executive order, and any future president may unilaterally revise, amend, or revoke the order.
● Do the Obama executive order and the Maloney amendment dictate pronoun or restroom usage or adoption policies?
No. The Obama executive order, which amends the federal contractors executive order, prohibits discrimination in employment. The executive orders and the Maloney amendment do not say anything about pronouns or restrooms.
Anyone talking about adoption policies in the context of the Maloney amendment is intentionally misleading people. The Maloney amendment has nothing to do with adoptions. Whether contractors or grantees may discriminate in providing taxpayer-funded services *to the public* is a separate issue that is not addressed in any of the executive orders or amendments under discussion here.
● Some conservatives are touting the significance of the Russell amendment. What does that do?
Practically nothing. On April 27, 2016, in the House Armed Services Committee, Rep. Steve Russell offered his amendment to the National Defense Authorization Act (NDAA) for Fiscal Year 2017. Russell, a Republican, stated that his amendment was “reaffirming what the president is already doing in making a level playing field.” He was right.
The Russell amendment purports to protect the religious liberty of contractors (and some others) that do work for the federal government. It references a provision from the Civil Rights Act of 1964 that precisely mirrors the religious liberty protection already applicable to the Obama executive order. The amendment also references redundant provisions, including one from the Americans with Disabilities Act of 1990 that applies narrowly to permit a religious organization to discriminate against a disabled person who does not share the “religious tenets” of the organization. But even if this provision were applied broadly, it simply would restate the protection from the Civil Rights Act/executive order, because the Civil Rights Act defines religion to include “all aspects of religious observance and practice, as well as belief.”
● The NDAA containing the Russell amendment passed the House. The Heritage Foundation says the Maloney amendment “risks undoing” the Russell amendment. True?
False. The Russell amendment does nothing new. The Obama executive order, the Russell amendment, and the Maloney amendment independently provide the same religious liberty protection. The amendments are consistent with each other and simply affirm current federal policy already applicable to the Obama executive order.
● So, most Republicans already voted for the Maloney amendment when it was called the Peters amendment, the Democrats’ Maloney amendment is consistent with the Republicans’ Russell amendment, and both amendments are consistent with the Obama executive order. What’s going on here?
Politics. Many parents and school officials were rightly upset about the Obama administration’s overreach with respect to school restrooms. When the House voted on the Maloney amendment less than a week later, some groups took advantage of public angst by conflating the issues—falsely suggesting to donors, subscribers, activists, and readers that the Maloney amendment was connected to the recent guidance. Groups and politicians on both sides of the debate also wrongly asserted that the Maloney amendment nullified the Russell amendment, which some mainstream news outlets then incorrectly reported as fact. One year earlier, when the Peters amendment passed twice (passage of the amendment and passage of the bill), it caused no such controversy.
● You believe nondiscrimination laws generally do more harm than good, and you’ve shown that the Maloney amendment is substantively inconsequential. Why vote for it?
The Maloney amendment is like a sense of Congress regarding the Obama executive order from 2014. When analyzing the amendment, it’s important to recognize that we start with a flawed system. The question is not whether the system is perfected through the Obama executive order, which the Maloney amendment supports, but rather whether that executive order makes the system better or worse, more or less consistent with the Rule of Law.
The executive order isn’t something I would have written, but it does create consistency between the nondiscrimination policies that apply in federal employment and those that apply in employment by federal contractors. This consistency reflects the principle that an agent of the federal government—being paid with taxpayer funds—must follow the rules that apply to the government in interactions with third parties. The Maloney amendment affirms this important principle.
Instead of (or in addition to) employing its own workers to complete a project, the federal government may pay a contractor to employ people on behalf of the government. The federal government—representing taxpayers in the contract—offers work to the contractor in exchange for consideration that includes following the government’s own nondiscrimination policies in the performance of the contract.
● Why must an agent of the federal government follow the rules that apply to the government in interactions with third parties?
This principle is a general rule of governance that protects the rights of Americans. For example, the federal government cannot get around the Fourth Amendment simply by contracting with a telecommunications firm to provide warrantless access to the private communications of Americans. We correctly recognize that the Constitution prohibits an agent of the government from doing what the government itself cannot do.
● Shouldn’t anyone be eligible for taxpayer-funded contracts and grants regardless of actions?
No. Most Republicans rightly oppose taxpayer funding of abortions and have sought to prohibit organizations that perform abortions from receiving taxpayer funds. Government officials routinely make decisions about eligibility for taxpayer funding based on the actions of the potential recipient. Libertarians and conservatives understand that no contractor or grantee has an absolute right to taxpayer funds. Americans may disagree about the relative morality of abortions and employment discrimination, but we can agree on applying a single standard to taxpayer funding of contentious moral issues.
● Does the Obama executive order from 2014 undermine religious liberty?
Religious liberty cannot be used as a metric to judge the federal government’s policies with respect to contractors and grantees in the performance of services on behalf of the government using taxpayer funds. The reason is simple: While one person will complain that he is not eligible for a contract or grant on the basis of actions connected to his religious beliefs, another person will complain that it violates her religious beliefs that taxpayer funds go to contractors that discriminate or grantees that perform abortions. Both the rejected contractor/grantee and the forcibly compelled taxpayer can reasonably claim that the federal government is violating religious liberty.
Moreover, it has long been the case—under the federal contractors executive order and federal law—that a secular organization may not discriminate in employment on the basis of religion. But prohibiting a religious owner of a secular business from discriminating in employment on the basis of religion clearly violates his religious liberty. Indeed, for a business owner, there can be no more justifiable discrimination on religious liberty grounds than his decision not to employ someone who does not share his religious beliefs. Yet, on this issue, the Heritage Foundation and other groups are silent.
● Aren’t sexual orientation and gender identity unlike other protected classes?
The Heritage Foundation asserts that sexual orientation and gender identity are somehow different from other protected classes because these terms “refer to voluntary behaviors as well as thoughts and inclinations.” Even accepting this view of sexual orientation and gender identity, however, it’s clear that these characteristics apply just as strongly to religion, which has long been a protected class pursuant to federal law and executive order.
Religion encompasses a wide range of voluntary behaviors, thoughts, and inclinations—from beliefs about marriage and circumcision to transcendence rituals and beyond. Likewise, religion raises potential issues with respect to expressions of disagreement or disapproval (the religious liberty of the business owner), the use of various facilities at the organization, and the accommodation of preferences that may make others feel uncomfortable. Yet, few people are calling for deleting religion as a protected class.
● Is it true that the Obama executive order contains no bona fide occupational qualification (BFOQ) exemption, which allows employers to discriminate in employment decisions as long as those decisions honestly relate to job qualifications?
Yes, but there’s nothing unique about the Obama executive order in this regard. None of the executive orders related to federal contractors explicitly discuss exemptions for BFOQs; this issue has been addressed instead by the Department of Labor through implementing regulations, which do permit discrimination in cases where sex is a BFOQ.
● Are gender identity issues real?
Whatever one may think about gender identity generally, there are at least some individuals who undeniably may face gender identity issues: persons who are intersex. These individuals are born with genetic and often physical characteristics that do not fully align with male or female sex characteristics (e.g., the person may have been born with both male and female sex organs). Intersex conditions are rare, but some intersex individuals may discover later in life that their gender identity differs from the gender that their parents or doctors assigned them (nominally or surgically) at birth. Many Americans agree with me that nondiscrimination laws with respect to anyone, including misgendered intersex persons, are harmful; others disagree. But those who casually dismiss the legitimacy of gender identity issues should acknowledge and account for such persons.
I don’t know how much of what Rep. Amash writes is right or wrong, but I applaud his comprehensive explanation of his views. If only Rep. Reed were as open with his constituents. Reed’s facebook posts are mostly fluff; consequently there is little interest evidenced. Rep. Amash’s post attracted 1,500 likes.