Past and Future
The order accomplishes part of what legislators attempted with the Employment Non-Discrimination Act (ENDA), a bill that passed the Senate earlier this session and now languishes in the House. In its current form, that ENDA would prohibit most employers in the country from sexual orientation-based discrimination but would exempt religious organizations and the military.
Nearly every Congress for the past decade has dealt with a similar bill in some fashion, according to Human Rights Campaign, but so far none has passed into law. In 1998, President Bill Clinton signed a related and limited executive order prohibiting sexual orientation-based discrimination in some competitive services of the federal civilian workforce.
Several groups supportive of same-sex marriage, including the ACLU, released a letter July 8 withdrawing their support of the legislative ENDA in its current form, saying that the exceptions were "no longer tenable" and such a bill would lead to "further negative effects."
If Congress follows Obama's lead, the executive order's lack of exemption could make it more difficult for a future version of ENDA to pass into legislation, Berg said.
"Legislation requires Republican votes, and even Republicans who eventually would be open to voting for ENDA won't do so if it lacks meaningful protections for religious organizations," he said. "Progressives are turning against exemptions, but that will make it harder for them pass the underlying laws."
At stake in Obama's executive order is a small but important move in one direction or another indicating how the government views sexual identity in comparison with racial equality—protected in almost every context—and other civil rights, said David Skeel, professor of corporate law at the University of Pennsylvania. Obama's language choice indicates whether he places more importance on sexual identity or religious freedom, Skeel said.
"[Going] forward with anything other than an order with exemptions built into it suggests that, on balance, sexual orientation is his stronger concern," he said.
In response to announcements about the pending executive order, faith leaders in late June and early July sent two letters to the President asking him to include language that exempts faith-based organizations from his order.
Neither letter requested new protections; rather, signatories asked that they be allowed to continue using the hiring practices they have since Obama took office, said Michael Wear, a faith policy strategist, former director of faith outreach for Obama's 2012 campaign, and organizer of one letter. The letter he helped coordinate includes 14 signatures from people sympathetic to the Obama administration who "love the president and pray for the president," he said.
"We still live in a nation with different beliefs about sexuality," the letter notes. "We must find a way to respect diversity of opinion on this issue in a way that respects the dignity of all parties to the best of our ability."
Representatives of several religious nonprofits, including World Relief president Stephan Bauman, Catholic Charities CEO Larry Snyder, Noel Castellanos, CEO of the Christian Community Development Association, and Joel Hunter, who served in the inaugural year on President Obama's advisory council for faith-based and neighborhood partnerships, signed the letter.