Religious Freedom Groups Oppose Biden Proposal to Rescind Trump-Era Exemption

By Mark Tapscott
Mark Tapscott
Mark Tapscott
Congressional Correspondent
HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.
November 9, 2021 Updated: November 10, 2021

Civil liberties advocates oppose President Joe Biden’s proposed rescission of a Trump-era broadening of a regulatory exemption protecting religious employers from being forced to hire individuals who don’t share the organization’s faith views or practices.

In a proposed rule posted Nov. 9 on the Federal Register for official public comment, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) said it had proposed in 2019 a revision that’s now viewed as going too far in broadening the definition of “religious freedom” in hiring by federal contractors and subcontractors.

The 2019 proposal was amended in 2020 and became law in January 2021 just before President Donald Trump left office. Now, according to OFCCP under Biden, the previous broadening required that religious freedom “must be construed in favor of the broadest protection of religious exercise ‘permitted by the U.S. Constitution and law.’”

Prior to the Trump revision, federal officials usually recognized the right of religious organizations to hire individuals who shared a particular group’s faith principles and practices.

But when the Supreme Court expanded the definition of “sex” in Title VII of the 1964 Civil Rights Act to include homosexual and transgender individuals, a conflict was created with the Constitution’s guarantees of equal protection and religious freedom in hiring practices.

The Trump rule was intended to make clear that an individual couldn’t be fired because of a religious-based objection to being required to participate in actions or pronouncements favoring homosexual or transgender practices. In addition, an employer could legally decline to hire an individual whose sexual practices or claimed gender conflicted with a clearly stated religious belief.

Atheist groups are lauding Biden’s action, with Alison Gill, vice president for legal and policy at American Atheists, saying in a statement that her group applauds “the Biden administration for restoring workers’ freedom of religion.”

“The government should never fund businesses that justify discrimination based on religious beliefs. And American taxpayers should never be forced to be complicit in discrimination,” she wrote.

But public interest law firms specializing in litigation on behalf of the First Amendment’s guarantee of religious freedom of practice and assembly said the Biden administration’s attempt to repeal the Trump-era regulation indicates an anti-religion prejudice.

“Religious liberty means that the government cannot force religious organizations and businesses to abandon their religious identity in order to partner with the government. The pattern of hostility toward religion that we’re seeing from the Biden administration is disturbing,” said Jeremy Dys, special counsel for litigation and communications for the Plano, Texas-based First Liberty Institute. 

Mat Staver, founder and chairman of the Orlando, Florida-based Liberty Counsel told The Epoch Times he’s not surprised by the Biden proposal. “This has been Biden’s practice all along, including when he was part of the Obamacare campaign. He’s anti-religious freedom and anti-Christian,” he said.

Both First Liberty Institute and Liberty Counsel are representing hundreds of employees of the U.S. military and the federal civilian workforce, as well as corporations, health care organizations, and private businesses in seeking to force the Biden administration to recognize religious exemptions to the president’s recent orders requiring workers to receive the vaccination against the CCP virus.

Biden’s OFCCP proposal creates an unusual situation in which a change in presidential administrations leads in less than a year to a single agency completely reversing itself on an important major policy issue.

The OFCCP’s rescission notice said that “the 2020 rule’s departures from Title VII principles and case law are likely to increase rather than decrease confusion about the application of the Executive Order 11246 religious exemption.

“Furthermore, to the extent the 2020 rule reflects the previous administration’s policy judgments regarding deviating from Title VII case law and principles, the present administration has evaluated the range of permissible policy options and determined that a return to its traditional approach of applying Title VII case law and principles will promote clarity and consistency in the application of the exemption.”

The same agency just 11 months ago described the Trump policy now being revised by Biden as being to “ensure that OFCCP respects religious employers’ free exercise rights, protects workers from prohibited discrimination, and defends the values of a pluralistic society. … This rule is intended to correct any misperception that religious organizations are disfavored in government contracting by setting forth appropriate protections for their autonomy to hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.”

An estimated one-quarter of all employers in the United States receive federal contracts or are sub-contractors on such agreements between the government and private businesses.

Comments on the Biden proposal are open until Dec. 9, and may be submitted at http://www.regulations.gov.

Mark Tapscott
Congressional Correspondent
HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.