Republican congressional leaders agreed this week to remove controversial religious freedom protections from the 2017 defense spending bill, angering many conscience rights advocates as opponents of the provision cheered the move as a victory for LGBT rights.
"Because Congress ducked this important issue, more service providers will be unable to continue offering their critical services, services that are sometimes only offered by religious groups," said Kristina Arriaga, executive director of the Becket Fund for Religious Liberty, in a press release.
The final version of the National Defense Authorization Act, produced by members of the Senate and House Armed Services committees, does not include the Russell Amendment, which would have ensured that religiously affiliated nonprofits contracting with the federal government could hire on the basis of religious belief, even if that meant excluding LGBT job applicants.
This provision, introduced by Rep. Steve Russell, R-Oklahoma, in April and included in the version of the NDAA passed by the House in May, was criticized by Democratic leaders and LGBT rights activists, who labeled it discriminatory. The White House had threatened to veto the bill, at least in part because of the Russell Amendment, if it passed in its House form.
Some observers worry that the compromise version of the NDAA signals further deterioration of religious liberty in the U.S., but Republican aides familiar with the Senate and House Armed Service committees' work argue that President-elect Donald Trump's leadership will create opportunities to accomplish what the Russell Amendment aimed to do.
"Subsequent to the election, new paths have opened up to address those issues. It's still a very important issue for members, and they intend to pursue those other paths," an unnamed aide told the Washington Blade on Tuesday.
Why was the Russell Amendment introduced?
In July 2014, Obama signed Executive Order 13672, "adding sexual orientation and gender identity to the list of protected categories in the existing executive order covering federal contractors," according to a White House press release.
Obama's order kept in place an exemption allowing religiously affiliated contractors to apply a religious test for employing people with explicitly religious roles, such as a minister. However, critics argued that protections needed to be broader in order to ensure that these organizations didn't have to compromise on their beliefs in order to work with the government, Politico reported at the time.
Introduced to the House version of the NDAA in April, the Russell Amendment sought to shore up the rights of not-for-profit religious organizations. It wouldn't have applied to all federal contractors, as some media reports have claimed.
"Neither for-profit organizations nor secular organizations have ever qualified or ever could," wrote Douglas Laycock a recognized religious liberty expert and law professor at the University of Virginia, in The Hill on Nov. 17.
He argued that the Russell Amendment was a reiteration of long-standing religious protections, rather than an effort to give religious employers free reign to discriminate against the LGBT community.
"The Russell Amendment says simply that not-for-profit religious organizations with government contracts get the protection of both the language from the Civil Rights Act — the right to hire persons of a particular religion — and the clarifying language of the Disabilities Act, that this includes adherence to the religion's tenet," Laycock said.
What made it controversial?
The Russell Amendment emerged as a key roadblock stalling the NDAA for a variety of reasons, including disagreements about what it sought to do and ongoing battles over how to balance religious freedom protections and non-discrimination law.
Supporters argued that few contractors would be eligible for the religious exemptions, while also noting that the provision was necessary to ensure that government could continue working with the best service providers.
"There are not that many religious organizations with government contracts, but there are some, and they do important work. They should not be forced to choose between abandoning their cooperation with government programs or abandoning their religious identities," Laycock wrote.
Religiously affiliated contractors "are awarded government contracts and grants because they are the best and most cost-efficient at meeting the needs of vulnerable populations, and they do not discriminate in providing services," the Becket Fund press release noted.
Senate Democrats and other opponents argued that the provision would put millions of members of the LGBT community at risk of losing their jobs. These critics mobilized against the Russell Amendment, writing letters of protest and calling Republican characterizations of it into question.
A group of 40 Senate Democrats and two independents released a letter in October arguing that the Russell Amendment would 'vastly expand religious exemptions' provided by the Civil Rights and Disabilities acts, the Associated Press reported.
Opponents, including the Human Rights Campaign and ACLU, released petitions with similar arguments this month, News OK reported.
"The Russell Amendment is one of the most significant threats to LGBT people, women, religious minorities and others we have seen in Congress in years," the groups stated.
As Senate and House leaders worked to craft a final version of the NDAA, disagreements over the Russell Amendment ballooned into a larger debate about the status of religious freedom law in the U.S.
Democrats increasingly support LGBT rights at the expense of religious liberty protections, while Republicans do the opposite, as the Deseret News reported last month. Compromise is becoming more and more elusive.
This spirit helped turn discussions on the Russell Amendment into a standoff, rather than a negotiation.
"(Critics) will not be satisfied until their assaults of intolerance on people of faith in this country has produced an elimination of God in public life in America," said Congressman Russell in a speech from the House floor in May, according to NewsOK.
What happens next?
The NDAA posed a unique challenge for Republican and Democratic lawmakers alike. People on both sides of the Russell Amendment debates risked being viewed as ineffective and anti-military if they couldn't get the NDAA deal done, the AP reported, characterizing the bill as "must-pass."
Republican leaders who agreed to remove the provision are facing a backlash from within their own party. High-profile Republican supporters of the Russell Amendment included Sen. Orrin Hatch, R-Utah, who wrote an editorial for The Washington Times last month criticizing efforts to mischaracterize it.
"There’s been a great deal of misinformation spread about the Russell Amendment and what it does and does not do," he wrote. "We must reject the idea that religious freedom and equality are enemies."
However, those who agreed to drop the provision may be able to defend their move by pointing toward the future. Even Hatch has presented the loss of the Russell Amendment as an opportunity for Trump and the GOP-controlled Congress to act.
"Because Congress was unwilling to enact this language, addressing the ambiguity in the 2014 executive order now falls to President-elect Trump and the next Congress," he wrote in a Thursday op-ed for The Wall Street Journal.
The Washington Blade speculated on how a new Congress or administration could respond.
"With Donald Trump in the White House, lawmakers may try yet again with the provision and face no veto threat, or Trump on his own could rescind the executive order or insert a religious exemption in the measure," the article noted.
The Russell Amendment situation should serve as a reminder for LGBT rights activists that a my-way-or-the-highway mentality won't work moving forward, Laycock wrote.
"The LGBT community faces an uphill battle getting gay-rights legislation through Congress and red-state legislatures. It will not happen without religious exemptions," he said.
The House passed the new version of the NDAA on Friday, and the Senate will consider it next week.