In a letter to the President, 50 legal scholars urge the President not to include a broad religious exemption to a proposed executive order that would bar LGBT discrimination by federal contractors. The letter states that RFRA does not affect the executive order, because the Federal Government can choose how it spend money.
Second, the Court’s jurisprudence, including its recent decisions under the Religious Freedom Restoration Act, in no way affect the promulgation of an executive order that establishes the conditions under which taxpayer dollars can be expended to subsidize the work of a private organization. The federal government is free to require that government contractors adhere to government standards. Religious contractors do not have a right to government contracts, and there is no burden on their religious exercise if they are unable or unwilling to comply with those requirements. When spending taxpayer dollars the government should be permitted to favor – and indeed, should favor – employers who do not discriminate on invidious grounds, including sexual orientation and gender identity. As with race, gender, or any other protected class, the fact that some religious employers who do not share a commitment to equal treatment will be disfavored by such a rule does not create a constitutional problem.3
3 Cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (although not an employment case, Bob Jones upheld the IRS’ authority to revoke the tax-exempt status of a university that discriminated on the basis of race in its student policies).
Is this right? Does RFRA not “affect the promulgation” of the Executive Order?
Section 3(a) of RFRA, the super-statute, makes clear that it applies to “all federal law,” whether “statutory or otherwise.”
(a) In generalThis chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.
The only way to get around this law, is for “federal statutory law” to specifically exclude the applicability of RFRA:
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
The President’s executive order would be issued against the backdrop of RFRA.
So it would seem pretty clear that the executive order would be bound by RFRA. A contractor denied a contract based on this executive order could raise RFRA as a defense. Whether that defense will be successful is doubtful. But RFRA would apply.
For my previous thoughts on this topic, see here, here, here, and here.