Earlier this week, President Barack Obama signed a much anticipated executive order that prohibits all government contractors from discriminating against their gay, lesbian, bisexual, or transgender employees. This anti-discrimination requirement will be set down in the contracts between the government and the contractors. After fierce lobbying from both sides, the President also decided that he would not exempt religious groups from this order. His order comes hard on the heels of the highly divisive Supreme Court’s decision in Burwell v. Hobby Lobby, where the Supreme Court, by a five-to-four vote, struck down the healthcare law’s contraceptive mandate under the Religious Freedom Restoration Act (RFRA).
The President’s executive order creates a two-tier system whereby any firm that wants to do business with the United States government—and only those firms—must abide by the mandate; the Obama administration cannot impose the mandate by regulation on all businesses generally. But this raises a key normative question: should the government be able to impose by contract mandates on businesses that it could not impose on them by legislative action?
The popular acclaim that the President’s action has received from many gay rights activists should not be allowed to conceal the serious difficulties in this two-tier regime. No President should be allowed to do by executive order what he is unable to do by way of regulation, unless it can be shown to be essential for the operation of the government system, which is manifestly not the case here. Put otherwise, the prohibitions of RFRA should apply as much to executive orders as to regulations more generally, particularly on explosive subjects like religious freedom.