Donald Trump missed his calling, it wasn’t real estate, it wasn’t politics, it is prestidigitation---magic. He is the master of the art of misdirection.
He gets the press, the political world and public to look here---at one of his shiny objects---while he does his serious work over here, away from the lights and the public view.
This past week he did it again---most of America focused on his statements about El Paso, his attacks on the Clintons for Jeffrey Epstein’s suicide, his bizarre assertions at his rallies---while his Department of Labor quietly decimated decades of protections against religious discrimination in employment.
Since the 1964 Civil Rights law was passed, it has been illegal to discriminate on religious grounds in employment under federal law. If you employed 15 people you qualify as an “employer” under federal law and can’t discriminate.
However, the Civil Rights Act’s authors included an understandable and rational exemption for religious institutions performing work “connected with the carrying on…its religious activities.” An accommodation that permitted, for example, Catholic churches to hire Catholics to further religious practices in its institutions. They would not be penalized if they rejected a Jew or Protestant or Muslim to be a bishop’s secretary in the archdiocese offices.
In 1972, Congress amended the statute to expand the nature of the religious exemption to cover “all activities of a religious organization” (not just religious ones).
Simultaneously, there is long standing precedent that governments (and the federal government contracts with thousands of contractors), when they contract with private entities for services and goods, can demand compliance with rules and strictures that are not otherwise imposed on employers in the private sector; they can demand greater protections than the law otherwise requires.
Now comes Trumpo, the Magician, and his administration is demanding fewer protections.
The Trumpkins have wedded the government's power to influence those who contract with it with an obvious desire to please Evangelical and other conservative, sectarian folks to essentially do an end run around Title VII’s protections against religious discrimination.
In rules proposed last week, the administration has established three vague and ambiguous thresholds that would allow a contractor with the federal government to be free of the laws that prohibit religious discrimination in employment.
No amendments were offered in Congress to alter the language of the 1964 Civil Rights Act, rather the government is telling thousands of its contractors, that they are, by fiat, changing the rules that really matter--whether and how firms deal with the US government.
The new rules are a “get-out-of-jail” free card if the employer:
a) claims to be organized for a religious purpose (the definition is so broad that it can be a non-profit, but needn’t be; it may, or may not be, composed of individuals sharing any single religion, sect, denomination, or other religious tradition);
b) holds himself out to the public as carrying out a religious purpose (easy to assert, tough to question); and
c) exercises religion consistent with, and in furtherance of, a religious purpose (“religious purpose” means religious as “measured with reference to the particular religion identified by the contractor”).
The terribly unclear rules are made even more vague since the measure of what is a genuine religious purpose is NOT determined by “whether the act is compelled by, or central to, a system of religious belief. An exercise of religion need only be sincere.” It's measured by the employer's "sincerity."
For example, if I “sincerely” believe that I should only hire employees who believe in the Hare Krishna faith, the fact that the faith doesn’t “compel” me to act this way is irrelevant, so long as I “sincerely” believe it does.
To further buttress specious claims of belief in some “divine instruction to discriminate” the new rules proudly note “the religious beliefs need not be acceptable, logical, consistent or comprehensible to others to merit First Amendment protections”----point, game, set. There is no yardstick by which to measure the claimed belief.
If I have an aim to practice bigotry, I simply need to “sincerely” (whatever that means) claim that my business is for a religious purpose, then I assert that I am serving that purpose and that my acts are consistent with whatever faith (however bizarre) I claim to adhere to and the government won’t look to see if it all makes sense.
One doesn’t have to be a Supreme Court justice to figure how to game this system. This is an exception that one could drive a Mack truck through and the trumpkins slid it in the Federal Register last week.
Many Trump fans will love the new rules in the belief that anti-discrimination statutes are a meddlesome burden of days gone by (much like the Voting Rights Act).
What they undoubtedly don’t think about is that that same license to “sincerely believe” is applicable to other faiths that they may not be so fond of, whose adherents may not want to hire them. The new rules don’t single out Evangelical Protestants for protection.
While many Trump followers proclaim a “fear of Sharia law trumping federal law”, they have just made a case for how and when it could if its adherents “sincerely believe” in obscure elements of the Koran that don't comport with our non-discriminatory employment laws. This is not to say it would happen, but trumpkins might consider the implications of their "logic."
While the press and the public focuses on Trump’s distractions, his minions are eroding decades old protections for those employed by federal contractors and, abra cadabra---millions of people may be put outside the protections of Title VII and at risk of discriminatory treatment.