- - Thursday, November 17, 2016

ANALYSIS/OPINION:

In 1994, nearly every member of Congress supported legislation affirming that the free exercise of religion is an “unalienable right.” Four years later, Congress unanimously declared that religious freedom “undergirds the very origin and existence of the United States.” Today, however, President Obama says he will veto crucial legislation equipping the armed forces to defend our nation rather than protect religious freedom. We have come a long way in a short time, but in the wrong direction.

The controversy concerns a small provision in a very large bill. In May, as it does every year, the House of Representatives passed the National Defense Authorization Act, or NDAA, to fund the Department of Defense. During the committee markup, Rep. Steve Russell, Oklahoma Republican, offered, and the committee adopted, an amendment to the bill to ensure that religious organizations and educational institutions that contract with the federal government do not lose religious liberty protections that they enjoy under other federal laws merely because they choose to work with the federal government. These protections enable such organizations to preserve their religious identity by hiring employees who share the organization’s beliefs.

Just four years ago, the Supreme Court unanimously affirmed that the free exercise of religion includes the right of a religious organization to choose who will carry out its religious mission. Federal statutes reflect this principle. The Civil Rights Act of 1964 and the Americans with Disabilities Act, for example, both protect the right of religious employers to hire “individuals of a particular religion to perform work connected with [the employer’s] religious activities.”

The Russell Amendment to the NDAA affirms that religious organizations and schools enjoy these same protections when they contract with, or receive grants from, the federal government. The amendment embodies the commonsense, longstanding principle that religious organizations should not have to surrender control over their religious mission in order to interact with government.

Mr. Obama, however, has threatened to veto the NDAA rather than allow religious organizations and schools to hire in accordance with their religious beliefs. The president and his liberal allies are concerned, it seems, that if religious organizations that contract with the federal government are able to select employees who share the organization’s religious beliefs, they may make decisions that liberals would disapprove of. For example, a conservative religious school may choose to hire individuals who hold traditional views on marriage and human sexuality. Because the president does not share these views, he thinks religious organizations should be unable to take them into account when seeking employees who will promote the organization’s mission.

It’s hard to imagine a more extreme position that is more at odds with America’s entire history, heritage, and tradition. Failing to provide religious organizations the freedom to choose employees who will carry out their religious mission would insert government into fundamental decisions regarding religious identity, discriminate based on religion, or both. It would also have the effect of declaring certain religious beliefs off-limits.

There’s been a great deal of misinformation spread about the Russell Amendment and what it does and does not do. Some have claimed that the amendment would allow contractors to deny service to gays or lesbians or enable any contractor who so wishes to make hiring decisions on the basis of religious beliefs. It would do no such thing. It is limited only to hiring practices and only to religiously affiliated corporations, associations, educational institutions, or societies, in conformance with exiting protections in other laws. It clarifies that religious organizations do not lose religious liberty protections merely because they enter into contracts with, or receive grants from, the federal government. That’s it.

Rather than turn our back on longstanding religious liberty protections, as Mr. Obama threatens to do, we should embrace our heritage of religious freedom. Beginning in the 1500s, religious communities came to our shores to freely practice their faith. Two centuries later, the Framers of our Constitution listed the free exercise of religion as the first individual right in the Bill of Rights. Since then, our laws and treaties have consistently provided robust protections for religious liberty. Mr. Obama himself, in annual proclamations, has called religious freedom “the natural right of all humanity,” a “universal human right,” and a “critical foundation of our Nation’s liberty.”

We should also tell the truth about laws that protect religious freedom. Almost without exception, the media refers to the Russell Amendment and other religious liberty laws as “anti-gay” or says that they “authorize discrimination.” Such statements are false on their face and imply that religious believers are bigots. Religious freedom is about exercising faith without government control, not seeking to oppress other people.

Finally, we must reject the idea that religious freedom and equality are enemies. In recent legislation, my home state of Utah has shown that our laws can promote freedom from discrimination alongside freedom of religion. An extreme approach that believes one side wins only if the other side loses, that would veto any affirmation of existing protections, will produce nothing but discord and resentment. What we need instead is compromise and good faith, on both sides.

Orrin Hatch is a Republican senator from Utah and president pro tempore of the U.S. Senate.

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