Democrats are sounding the alarm over the potential inclusion in major defense spending legislation of an amendment that would undermine President Obama’s executive order barring anti-LGBT discrimination.
A group of 42 Senate Democrats led by Sen. Richard Blumenthal (D-Conn.) made public a letter on Tuesday calling on the conference committee working on the fiscal year 2017 defense authorization bill to omit from the bill the Russell amendment, which would allow religious-affiliated federal contractors to discriminate against workers.
“Section 1094 applies not only to the Department of Defense, but to the entire array of federal agencies and their contractors and grantees,” the letter says. “This would have far-reaching consequences, as taxpayer-funded discrimination would be allowed in every contract, subcontract, grant, cooperative agreement and purchase order awarded by federal agencies conducting business with religiously affiliated organizations.”
Rep. Steve Russell (R-Okla.) inserted the provision as an amendment to the House version of the defense authorization bill in April during the House Armed Services Committee’s consideration of the measure. The Senate version of the defense legislation lacks any comparable language.
The Russell amendment permits “any religious corporation, religious association, religious educational institution or religious society” contracting with the U.S. government to engage in anti-LGBT discrimination on the basis of religious freedom. Because it would have the force of law, it would undermine Obama’s 2014 executive order barring anti-LGBT workplace bias among federal contractors.
The lack of definition for “religious corporation” in the provision could allow courts to construe the term broadly to any federal contractor — not just religious organizations — in the aftermath of the U.S. Supreme Court’s 2014 decision in the Hobby Lobby case.
During a conference call with reporters, Blumenthal said the adoption of the amendment into law as part of the defense authorization bill would enable “sweeping taxpayer-funded discrimination.”
“To protect religious rights, reproductive rights, all the fundamental rights that are American values, we hope that it will be deleted, and we are sending this message as urgently and strongly as we can because it is so important to so many of us members of the Democratic caucus,” Blumenthal said.
Laura Durso, senior director of LGBT research and communications at the Center for American Progress, said on the conference call that the amendment would enable discrimination “that is not hypothetical,” citing statistics that one-in-10 gay people have experienced employment discrimination and one-in-four transgender people have encountered such bias.
“Extreme anti-LGBT bills like the Russell amendment will put millions more workers at the risk of employment discrimination, including the 28 million workers under President Obama’s executive order barring discrimination in federal contracting.” Durso said.
Much of the onus from ensuring the amendment is omitted from the final version of the defense authorization bill is placed before Sen. John McCain (R-Ariz.), who chairs the Senate Armed Services Committee and is facing a challenging bid for re-election.
David Stacy, government affairs director for the Human Rights Campaign, said he hopes McCain would be consistent with his opposition to Arizona’s “religious freedom” measure enabling anti-LGBT discrimination and ensure the Russell amendment is omitted from the defense bill.
“This is not identical, but similar in intent of allowing religious discrimination, and he was opposed to that law,” Stacy said. “We’re hopeful that he will take a look at this and be opposed to it, but at this point he’s not made any public statement and we certainly would love to see him come out against this provision, and he certainly has the power to say ‘no’ to having it in the bill.”
A McCain spokesperson declined to comment on the basis conference negotiations are still ongoing. A spokesperson for the Senate Armed Services Committee also declined to comment, citing committee practice not to comment on defense authorization provisions subject to negotiation until the entire conference report is completed.
Representatives from other organizations on the conference call — including the American Civil Liberties Union, NARAL, Planned Parenthood and Americans United for Separation of Church and State — said the provision would also enable federal contractors to fire a female employee who uses birth control or who’s pregnant and unmarried and allow them to refuse to interview a potential employee because they have a faith different from the employer.
Heads of congressional committees handling negotiations for the final version of the defense authorization bill have said discussions are postponed until after Election Day as a result of a sticking point over a separate provision that would block the federal government from recognizing the sage grouse as an endangered species.
Blumenthal was noncommittal during the conference call in response to the Washington Blade’s question about whether the Russell amendment was also a sticking point in negotiations, or simply an issue to which Democrats want to bring awareness.
“I’m not going to speak for the chair and ranking members, but clearly it is an issue that has reached them, but what we’re doing here is essentially sounding an alarm about how strongly and widely held the belief is this measure should be removed,” Blumenthal said.
The senator also had little to say when the Huffington Post asked Blumenthal about his sense for whether McCain would allow inclusion of the Russell amendment in the final bill and whether negotiations were happening now or put on hold.
“I can’t speak for Sen. McCain, you’d have to talk to him, and I know there have been conversations all along, I can’t tell you whether they are ongoing literally today among the chair of ranking members,” Blumenthal said.
Asked whether Senate Democrats would filibuster the defense authorization bill if the Russell amendment is included in the final package, Blumenthal said “no decision” has been made about that action in the event that happens.
“I have never voted against a national defense authorization act and I am very, very hopeful that I will vote for this one,” Blumenthal said. “What we’re trying to do is eliminate this provision before the NDAA reaches the floor.”
The White House has called the inclusion of the amendment in the defense authorization bill “perverse” and included the provision as one of the many factors in the bill that would lead President Obama to veto the measure.