The rule “authorizes discrimination in the name of religion,” warned Louise Melling, deputy legal director for the American Civil Liberties Union.
Sarah Warbelow, legal director of the Human Rights Campaign, called it “a license to discriminate.”
The Labor Department said that the proposal, which will be published in the Federal Register on Thursday and which the public has one month to comment on, “ensures that conscience and religious freedom are given the broadest protection permitted by law.”
Under existing federal law, religious nonprofit organizations that enter into contracts with the federal government have been exempt from the requirement that federal contractors not discriminate on the basis of religion. In other words, a Catholic nonprofit could decide to employ only Catholics or a Muslim nonprofit could employ only Muslims and still seek federal contracts.
The proposed ruling appears to expand upon existing policy in at least two ways.
First, the Trump administration’s proposal seems to allow not just religious nonprofits but closely held for-profit companies — which claim religious beliefs on the part of their owners — an exemption from anti-discrimination rules when it comes to religion. The Labor Department cited the Supreme Court’s 2014 decision that the for-profit company Hobby Lobby could, on the basis of its owners’ religious beliefs, decline to provide certain contraception coverage to employees.
The Labor Department said the proposed rule “should be construed to provide the broadest protection of religious exercise” and called this broad attitude toward the rights of believers a goal of the Trump administration.
Second, religious groups have long been able to select workers based on religious belief. The new proposed rule allows hiring and firing based on the religious beliefs not of the worker but of the employer: Companies “may make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government,” the department said.
The fear of some observers is that an employer might claim it is against his religious belief to employ a gay person or a person who has sex outside of marriage, such as a person in a cohabiting couple or a single mother.
The Labor Department said religious organizations must still adhere to protections for workers based on race, sex, national origin and other characteristics. Companies will also still be bound by the state laws of the jurisdictions they are located in.
A flurry of civil rights organizations and liberal groups released concerned statements after the Labor Department announced the proposed rule. Lambda Legal’s Jennifer Pizer wrote: “Given the conservative religious affiliations of many large institutional employers that seek federal contracts, we know the most vulnerable workers will be LGBTQ people, as well as Muslims, Jews and other religious minorities. For more than half a century, the federal purse has been a transformative driver of equal workplace opportunity in this country.”
Liberal religious groups argued that the rule is not necessary to protect religious liberty. “We reject the Trump administration’s distorted notion that personal faith can be used as an opt-out from civil rights laws, and we will not stand by while they place employees of minority faiths, nonreligious people, LGBTQ+ individuals, and so many others at risk,” wrote Katy Joseph of the Interfaith Alliance.
The Rev. Jennifer Butler, head of Faith in Public Life, called the rule “bad law and bad theology,” saying, “Religious liberty doesn’t give any boss the right to harm workers — especially on taxpayer-funded jobs.”
Advocates of the rule said that it was necessary to allow religious organizations to continue seeking federal contracts in a time of increased protections based on sexual orientation and gender identity.
Luke Goodrich, vice president and senior counsel of the Becket Fund, the group that litigated Hobby Lobby’s high-profile Supreme Court case regarding contraception, said that under President Barack Obama, religious groups asked the Labor Department to clarify their rights.
Obama had added new protections based on sexual orientation and gender identity, and some religious charities and colleges, unsure of the department’s stance toward their hiring practices, decided not to seek federal contracts, Goodrich said. The department’s draft rule mentioned in its text this hesitancy among religious groups competing for recent federal contracts.
The proposed rule, Goodrich said, gives religious organization the clarity they were seeking. “When a religious group says ‘Hey, we need you to be a Christian and adhere to Christian teachings,' federal law has recognized that’s not discrimination,” he said.
Melissa Rogers, a lawyer specializing in church-and-state issues who led an office for partnership with religious organizations during the Obama administration, said she thinks the proposed rule is wrongheaded.
“I’m a big proponent of religious liberty, but we have to balance that value with equal employment opportunity, particularly when we’re talking about federal contracting,” Rogers said. She said the proposed rule demonstrated a “serious failure” to protect workers. “What are the interests of American workers in being able to get and keep a job with a federal contractor without regard to their protected personal characteristics? The proposed rule says almost nothing about that.”
The rule comes from a department in transition. Labor Secretary Alexander Acosta resigned last month, facing criticism of how he handled the sex crimes case involving Jeffrey Epstein when Acosta was a federal prosecutor in Florida.
Trump has said that he will nominate Eugene Scalia as his next secretary of the department, naming the son of Antonin Scalia, the Supreme Court justice who was beloved among conservatives.
Wednesday’s proposal is the latest in a line of steps by the Trump administration to clarify protections for religious believers that critics have often seen as coming at the expense of LGBTQ rights. Earlier this year, the Department of Health and Human Services began finalizing rules designed to protect religious health-care providers, which some fear could lead to denial of medical services to patients based on their sexual orientation or gender identity.
This piece has been updated.