December 2016 Church & State - December 2016

Going On The Offense Over Defense

  Rokia Hassanein

The 2016 presidential election dominated the headlines for months. But even as that struggle played out, a political showdown was taking place in the U.S. Congress that could end with religious discrimination being enshrined in our nation’s laws.

The drama centered on the 2017 National Defense Authorization Act (NDAA). The bill, which funds the Department of Defense and its military operations, is considered must-pass legislation. Thus, it often attracts amendments that promote socially conservative views on military issues.

This year, it drew a much broader amendment. U.S. Rep. Steve Russell (R-Okla.) tacked on a particularly audacious provision to the House version of the bill (H.R. 4909). What has become known as the “Rus­­sell Amend­ment” would require that all fed­eral agencies allow religiously affiliated contractors and grantees to discrim­inate in employment on the basis of religion even when using taxpayer money.

This sweeping amendment isn’t limited to Defense Department programs, contracts, and grants; it would affect every federal government agency and every one of their contracts and grants.

The amendment would have the biggest impact on members of religious minority groups and the non-religious, as well as women and LGBTQ Americans whose views don’t align with the religious beliefs of their religiously affiliated employers.  

“[Under the amendment], a person could be denied a government-funded job based upon their religious beliefs and practices,” AU Legislative Director Maggie Garrett said during a press call Oct. 25. “It would effectively codify, and even go beyond, the most troubling aspects of the George W. Bush Faith-Based Initiative, which Congress rightly refused to enact, and that have been controversial for decades.”

The fight over the amendment has been going on for months and is still not resolved. Earlier this year, the House Armed Services Committee approved the provision, which became Section 1094 of the House version of the NDAA, by a 33-29 vote.

U.S. Rep. Robert C. Scott (D-Va.) led an effort to remove the provision in the House. On Sept. 14, Scott and nearly 90 House colleagues sent a letter to U.S. Rep. Mac Thornberry (R-Texas), chairman of the Armed Services Committee, and U.S. Rep. Adam Smith (D-Wash.), ranking mem­ber, urging them to remove the language.

“The scope of Section 1094 is far reaching as it would authorize taxpayer-funded employment discrimination in every grant, cooperative agreement, contract, subcontract, and purchase order awarded by every Federal agency doing business with a reli­giously affiliated organization,” observed the letter.

Unfortunately, the bill went to the U.S. Senate with the Russell language intact.

The Senate-passed version of the NDAA (S. 2943) does not include the provision. Now, members of the House and Senate are working to reconcile the two versions of the bill.

Thanks to the advocacy work of AU and its allies, senators are paying attention. In October, 42 senators, led U.S. Sen. Richard Blumenthal (D-Conn.), signed a letter condemning the Russell Amendment and emphasizing its dangers.

“This provision would be an affront to religious freedom for all Americans,” the letter stated. “Allowing Section 1094 to be included in the NDAA would essentially sanction federally funded religious discrimination, contradicting the First Amendment which prohibits religious exemptions like this that result in harm to others.”

The fact that 42 senators are now on record as opposing the Russell Amendment is significant because it shows the NDAA would lack the 60 votes necessary to defeat a filibuster.

Speaking to reporters during the Oct. 25 call, Blumenthal noted that he has never voted against the NDAA given its importance, and added that he hopes he won’t ever have to.

“Clearly, it’s an issue that has reached [negotiators], and what we’re doing here is sounding an alarm about how strongly and widely held the belief is that this measure should be removed,” Blumenthal said. 

Working with allies in the religious and public policy communities, AU’s Legislative Department played a vital role in not only urging Congress to publicly oppose the provision but also in working with the Obama administration, which opposes the inclusion of the Russell Amendment.

On May 16, the administration issued a 17-page document called a Statement of Administration Policy detailing a variety of problems in the NDAA that the administration wants to see fixed before the bill could move forward.

“This Administration is committed to promoting equal employment opportunities for all Americans regardless of who they are or who they love while at the same time preserving longstanding safeguards in the law for religious liberty,” the document stated. “In authorizing certain Federal awardees to discriminate in Government-funded jobs, section 1094 represents a step in the wrong direction for our country.”

Many legislators were concerned about the provision from the start. AU worked with them to raise public awareness and foster more opposition. AU and its allies first sounded the alarm in April, when Russell successfully inserted the provision into the House version of the NDAA.

AU spearheaded efforts to get the amendment out of the bill. The group mobilized the Coalition Against Religious Discrimination, an alliance of reli­gious and public policy groups it chairs, to send a joint letter to congressional leaders expressing strong opposition to the provision.

“We …  recognize that the separation of church and state is the linchpin of religious freedom,” the letter read. “In our view, effective government collaboration with faith-based groups does not require the sanctioning of federally funded religious discrimination.”

Americans United has also pointed out that the Russell Amendment jeopardizes employment protections Obama put in place in 2014 through Executive Order 13672, which prevents federal contractors from discriminating against employees on the basis of sexual orientation and gender identity. 

Not surprisingly, Russell is no fan of the Obama order. During an April 20 hearing in the House, he argued that Obama’s executive order violated the First Amendment, and he insisted that his provision safeguards “religious liberty.” 

AU’s Garrett strongly disagreed with Russell’s analysis. She told “Reveal,” a news website sponsored by the Center for Investigative Reporting, that his provision is “fundamentally un-American” and said, “[T]he government should not be funding discrimination.”

AU Assistant Legislative Director Dena Sher noted that Russell’s rhet­oric of masking discrimination as “religious liberty” is contradictory to the true values of religious freedom.

“Religious freedom is a fundamental American value, but it does not give you a right to discriminate, especially with taxpayer dollars,” Sher wrote in an Oct. 25 post on AU’s “Wall of Separation” blog. “No one should be disqualified from a taxpayer-funded job because they are the ‘wrong’ religion or they don’t follow the same religious tenets as their employer.”

The reach of the Russell Amendment is vast. While many people and media outlets are dubbing it as an anti-LGBTQ initiative, that’s just the start of its problems. The provision carries significant implications for religious minorities and women who are hired by federal contractors, too.

“A federal contractor or grantee could advertise for a taxpayer-funded job and say ‘No Mormons, Muslims or Jews Need Apply,’” Garrett said. “It means that a religiously affiliated organization could fire a woman working within a taxpayer-funded program because she is a single mother, and that violates its religious tenets.”

AU’s Federal Legislative Counsel Elise Helgesen Aguilar wrote about the troubling nature of the provision in a blog post that ran Oct. 28 on AU’s “Protect Thy Neighbor” website. She argued that people may not realize “just how sweeping and radical this measure is.”

Several members of Congress agreed that the discrimination the provision would allow is dangerous. That’s why many joined AU and its allies in a “tweet­storm” Oct. 25. The event used coordinated Twitter posts to raise aware­ness to the general public.

“Russell amendment would [especially] harm women who use birth control, become pregnant while unmarried, use IVF [In Vitro Fertilization] [and] more. We must #RejectRussell,” U.S. Sen. Patty Murray (D-Wash.) tweeted.

A sample of the lawmakers who participated in tweeting alongside AU to #RejectRussell included Blumenthal, U.S. Sen. Tammy Baldwin (D-Wisc.), U.S. Sen. Chris Coons (D-Del.), U.S. Rep. Carolyn B. Maloney (D-N.Y.), U.S. Rep. Elizabeth Esty (D-Conn.) and several more.

Both the #Reject­ Russell hashtag and “Russell Amendment” trended on Twitter nationwide. The event followed a coordinated campaign of outreach to the media and the Oct. 25 press call sponsored by Blumenthal that escalated coverage of the story. The Washington Post, NBC News, Roll Call, The Washington Blade, Politico, the Associated Press and others reported about the discriminatory provision.

AU also joined several allied groups in a petition drive. Anchored primarily in social media, the petition was delivered to Capitol Hill Nov.15.

While AU and its allies have increased awareness of the Russell Amendment, the situation remains in flux. Look for an update next month. 

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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