Would RFRA Provide a Defense to LGBT Executive Order?

June 17th, 2014

While the President’s proposed LGBT Executive Order has not yet been released, a White House Official commented that the order would “prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity.”

Can RFRA be raised as a defense to a violation of this order? Let’s put asides the merits for a moment. A statute that offers a defense to generally-applicable laws would seem to offer a similar defense for requirements under an executive order. Especially a super-statute like RFRA which purported to impact the entire U.S. Code. If a federal contractor was denied a contract because of sexual-orientation discriminating, could it not file a bid protest, raise RFRA as a defense, and allege that the executive order is subordinate to RFRA?

Whether or not this defense would be raise a valid claim–contra Elane Photography–as a matter of precedents, a statute would seem to trump an executive order. Am I wrong about this?

Relatedly, I’ve blogged about RFRA as a defense to generally applicable anti-discrimination statutes here, here, and here.

Update: Chris Geidner reports that there will be an upcoming meting to discuss the scope of the executive order. One of the topics to discuss is the scope of a religious exemption:

Among the key questions unresolved with Monday’s announcement is the scope of any religious exemption to be contained in the executive order. In recent weeks, some LGBT organizations and activists — including the National Center for Lesbian Rights and Transgender Law Center — have announced their opposition to the Senate-passed version of the Employment Non-Discrimination Act because of the scope of its religious exemption. It is still unclear how that debate and the pendingHobby Lobby case before the Supreme Court will figure into consideration of any religious exemption in the executive order.