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Obama’s Misbegotten Executive Order
Earlier this week, President Obama signed — to wide acclaim — an executive order that prohibited government contractors from discriminating against gay, lesbian, bisexual, or transgendered employees. He also, it should be noted, refused to allow an exemption to the policy for religious groups.
This is, in my judgment, a mistake. The president has taken this action through the more limited framework of an executive order that binds only federal contractors precisely because a broader regulation that applied to all businesses would be found to violate the Religious Freedom Restoration Act. But should a president use the federal government’s contracting power to accomplish what he couldn’t achieve through other means? As I write at Defining Ideas, that’s a perilous course of action:
A great irony in this debate is how many people are defending the executive order: the president, they say, has greater degrees of freedom in imposing conditions by contract than he does in doing so by legislation. A common principle of contract law is that each party is the master of its own offer, and can therefore set the terms and conditions on which it is prepared to do business. The government in this sense is treated like just another person, entitled to impose whatever conditions it sees fit on its trading partners. The executive order that extends the reach of the anti-discrimination provision only extends the rule that is already in place for direct hiring by the United States. So why, the defenders ask, oppose the executive order?
This line of argument has serious intellectual difficulties. The United States government is not just another private party that should be allowed to do what it will with its resources. The United States raises revenues by taxation from all of its citizens, some of whom are passionately in favor of the executive order, and some of whom fiercely oppose it. It is not sufficient for the defenders of the new employment mandate to say that their tax dollars should not fund bigoted behaviors thinly veiled by dubious religious precedents. Nor, by the same token, is it sufficient for other taxpayers to insist that their tax dollars should not fund the activities of those whom they regard as activists bent on their destruction.
It is therefore dangerous for the President to resolve this moral dispute in favor of the activists, just as it would be for a socially conservative president to come down the other way. In both cases the preferences of the dominant party become the norm, while those of its opponents are wholly disregarded. Funding now comes from all, but it is only spent on those groups in sync with the dominant political sentiment. All-or-nothing politics is a sure way to inflame political and social divisiveness. The President’s mandate is no more acceptable than one intended to implement the reverse goal of excluding gays and lesbians from firms that do business with the government. After all, if this is a raw political struggle, then why should one side, but not the other, be able to reap the harvests of war?
The government should not be taking sides in this debate. Rather, the goal of federal contracting should be to purchase high-quality services at the lowest possible cost, regardless of the demographic mix of the contractor’s workforce — a principle that would work to the advantage of all Americans.
What do you think?
Published in General
The law for procurement does not allow for the least expensive version of the item being purchased. A lot of things would have to happen for the government to buy a toaster for what the average suburban family would pay.
TAA or Tariff Agreement Act means that if the item can be purchased from a TAA signatory, say Mexico or Australia, a TAA signatory must be used. The same item, made in non-TAA country (say China), will lose out even though that item can be significantly less expensive
Today I priced some phones. The “made in the USA version” was $12.00 more expensive per unit than the “made in China” version. Somebody is paying the difference for the same identical phone.
Any guesses who is paying more?
An exemption for religious freedom is not a favor or a purely voluntary concession. The government owes religion the proper consideration. It’s a recognition that religious liberty is a legitimate concern, and that when there is a conflict between rights, religious concerns can’t be swept aside automatically.
The Hobby Lobby case reinforced the principle that religious rights are legitimate. Since two sets of rights can be legitimate, when there’s a conflict between them, both sides ought to strive to make as much accommodations as possible. Alito’s argument in the Hobby Lobby case was that the government made no effort to accommodate; the government simply wanted to push religion out of the way. Alito had to remind the Obama HHS that they owe respect to those religious beliefs, to the point that if HHS can accomplish their goals by other means, they are required to do try that first.
A religious group cannot be coerced into hiring someone who openly disrespects and disavows its own beliefs. Race and sex don’t disrespect any religious belief – but insisting that you can marry a gay partner does disavow beliefs, and that’s why it’s different.
So by this token and a few others lying about, could a future administration rely upon its own judgement to require contractors to employ a certain percentage of born-again Christians? Would a few well-shopped cases establishing fundamentalists as a protected class be sufficient?
I think the executive order is in poor taste, but I don’t disagree with its outcome.
The U.S. government has batted down people who claimed religious exemptions to hiring blacks, why should it not bat down religious exemptions over sexual orientation?