A Labor Department Directive that’s mostly for show

Alex Acosta’s Department of Labor has issued a Directive regarding the exercise of religious liberty by employees of federal contractors. The document, promulgated by DOL’s Office of Federal Contract Compliance, is here.

It instructs staff to be mindful of recent developments in Supreme Court jurisprudence regarding religious freedom. Specifically:

Pursuant to Masterpiece Cakeshop, agency staff “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices” and “must proceed in a manner neutral toward and tolerant of religious beliefs.”

They must not, given Trinity Lutheran, condition opportunities (such as federal contracts) upon an organization’s willingness to surrender its religious focus.

Consistent with Hobby Lobby, they must comply with the Religious Freedom Restoration Act when seeking to restrict the activities of a for-profit closely held corporation, meaning facially neutral laws must not unduly burden the exercise of religion.

They must permit faith-based organizations equal opportunity to compete for federal contracts.

They must allow for individuals’ and entities’ free expression of religion without fear of discrimination or retaliation by the federal government.

The Directive is a reminder of what existing law requires. It may be useful, inasmuch as the previous administration’s guidance was inconsistent in some respects with recent Supreme Court developments. However, the Directive breaks no new ground and offers no real guidance on how to resolve cases when considerations of religious liberty conflict with claims of discrimination by LGBT individuals.

Paige Smith, part of the Bloomberg team that has been providing good coverage of Acosta’s DOL, filed this report on the Directive and issues relating to it. Among the insightful points her sources made are these:

1. Issues regarding religious liberty rarely, if ever, arise among federal contractors. They tend to arise among small, closely held businesses that don’t deal with the federal government.

2. The Directive comes shortly after the resignation of OFCCP’s director. I should add that some, including me, have speculated that the resignation was due to Acosta’s unwillingness to undo the left-wing policies of the Obama administration. I discussed that unwillingness here.

3. The Directive looks like an attempt to appease conservatives without doing anything hard. Indeed, I agree with Adam Pulver, a former senior attorney in the DOL’s solicitor’s office, who told Smith the Directive does hardly anything at all. Certainly, it does nothing to change the OFCCP’s radical course. As noted, the Directive simply directs OFCCP staff to follow Supreme Court law. It says nothing new or original.

To these observations, I would add the following: In Masterpiece Cakeshop, the Supreme Court ducked the key issue of whether the cake baker could refuse to bake a cake to celebrate an event that violates his strongly held religious beliefs. But Acosta’s DOL didn’t need to duck the issue. It could have taken the position that people like the Colorado baker do not engage in unlawful discrimination when they refuse to provide services that go against their religious views. Acosta’s Directive did not do so.

I’m not saying it needed to. As noted, these issues are not particularly germane to the OFCCP’s work.

But let’s not be under the illusion that Acosta’s DOL has struck a meaningful blow for religious liberty. The Directive appears to be mostly for show.

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