Military Religious Freedom Again at Issue in National Defense Act

It’s been in the paperwork for months, but the “exciting” political environment has overshadowed the potential religious liberty fight brewing in the 2017 National Defense Authorization Act. The House version of the NDAA contains a simple, if seemingly obtuse, statement known as the Russell Amendment (via Rep. Steve Russell, R-OK, who offered the amendment):

Any branch or agency of the Federal Government shall, with respect to any religious corporation, religious association, religious educational institution, or religious society that is a recipient of or offeror for a Federal Government contract, subcontract, grant, purchase order, or cooperative agreement, provide protections and exemptions consistent with sections 702(a) and 703(e)(2) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1(a) and 42 U.S.C. 2000e-2(e)(2)) and section 103(D) of the Americans with Disabilities Act of 1990 (42 USC 12113(D)).

The short version of the story is that in 2014 President Obama issued an Executive Order that required anyone wanting to do business with the Federal government to affirmatively state they hire without regard to “sexual orientation or gender identity.”  That could very well affect a large number of contractors who do hire with regard to such issues — because they hire based on the requirements of their religious faith.

The Russell Amendment basically tweaks the Executive Order by applying a religious exemption that already exists for every other law. (The reason it doesn’t apply to the Executive Order is because it isn’t a law…)  In other words, this amendment protects religious organizations’ ability to hire and conduct their operations consistent with their religion, even if those beliefs don’t comport with the modern support for neo-sexuality.

In May, First Liberty Institute Senior Counsel Mike Berry noted this amendment was important for religious liberty within the US military:

Chaplains use diverse and varied contractors to help facilitate their ministerial services. For example, a chaplain may seek a vendor to provide ecclesiastical supplies such as communion wine or religious music for worship, and virtually everything in between. Historically, chaplains have been free to use vendors who meet their denomination’s religious standards with little or no government interference…

Under [the President’s Executive Order], [a] Muslim chaplain would be forced to use a vendor who disregards Islamic teaching on marriage, while the Catholic chaplain seeking ecclesiastical supplies must purchase from a vendor who ignores the church’s doctrine on sexuality.

Not to mention the fact some chaplains themselves are, in fact, contractors.

The ACLU isn’t having it, calling the Russell Amendment “taxpayer funded discrimination,” and claims it may scuttle the bill:

To think that Congress could authorize this kind of taxpayer-funded discrimination is beyond the pale…

If the Russell Amendment is not removed from the defense bill, the ACLU as well as allies in the LGBT, women’s rights, reproductive freedom, and religious liberty communities will urge Members of Congress to oppose the bill…

The ACLU then made a statement that can help you understand why they think people of faith should be forced to act against their conscience:

This is one of the most significant threats to the LGBT community and women, not to mention religious liberty, we have seen in Congress in years. Religious freedom is a fundamental American value that guarantees us the right to believe – or not – as we wish, but it cannot be used to justify harming or discriminating against others with taxpayer dollars.

There is a fundamental misunderstanding of religious liberty in that statement. Yes, it guarantees us the right to believe, but it also gives us the right to exercise that belief. “Liberty” that allows you to think but not act on those thoughts is an empty freedom, indeed. The US Constitution recognizes this, and fundamentally protects the government from interfering with the religious exercise, not the mere beliefs, of its citizens.

That hasn’t prevented the government from trying to restrict religious exercise, of course.

The US government recently tried to tell a family-held business they were required to act against their religious faith. Fortunately, in Burwell v Hobby Lobby the Supreme Court overturned that requirement, though it did so on a 5-4 split. In other words, half of the current US Supreme Court believes the government can prohibit a family from exercising their faith in their business.

It seems the ACLU has some allies in their fight against religious liberty.

As previously discussed.

Also at the Stars and Stripes.