When House Republicans added a provision to a sweeping defense bill that appeared to open the door to discrimination in government-wide contracting based on sexuality and gender identity, Democrats objected.
But when members submitted an amendment to strip that language on the floor this week, it was a Republican who led the charge.
“On this issue, I think there is a great deal of bipartisan interest,” said Rep. Charlie Dent, R-Pa., who is sponsoring the amendment to remove that language. “The country clearly is evolving, socially, on issues like this and perhaps this amendment is a reflection of that evolution.”
The provision in the National Defense Authorization Act (NDAA) was added during a late-night markup in April. Rep. Steve Russell, R-Okla., offered the amendment , which provides protections and exemptions to “any religious corporation, religious association, religious educational institution, or religious society” that receives a federal contract.
Russell’s amendment would apply to “any branch or agency of the federal government,” not just defense contracts.
Gay rights advocates objected, saying the measure would undermine a 2014 executive order that prohibits federal contractors from discriminating against Americans based on their sexuality and gender identity.
Dent agreed that could be an unintended consequence of the broad language. With NDAA set to come to the House floor as early as Wednesday, Dent is working with four Republicans and four Democrats to offer an amendment to remove the Russell provision.
Only two Republicans, Rep. Frank A. LoBiondo of New Jersey and Nevada Rep. Joe Heck, who is running for the Senate , voted against the amendment in committee. But four Republicans are co-sponsoring Dent’s proposal to remove it, including Florida Reps. Ileana Ros-Lehtinen, who has a transgender son, and Carlos Curbelo, whose re-election race the Rothenberg-Gonzales Political Report/Roll Call rates as a Toss-Up Tilts Republican .
Rep. Mike Coffman initially voted for Russell’s amendment, but the Colorado Republican is now co-sponsoring the effort to take that provision out of the bill.
Coffman’s office did not respond to a request for comment, but the Human Rights Campaign, which advocates for gay rights, welcomed his change of position.
“Members should be willing to take a second look at things when they feel like they didn’t cast the right vote in committee,” said David Stacy, the government affairs director for the rights group.
Stacy said Russell’s provision “significantly undercuts” President Barack Obama’s 2014 executive order .
Russell argued that was not the case. During the NDAA markup, Russell said his amendment was about extending religious liberty protections to Defense Department contractors, since the department had not yet codified the religious protections.
“This is not what is being characterized,” Russell said during committee markup. “This rule affirms prior policy that faith-based organizations are no less eligible than secular organizations to deliver federally funded services. … This is reaffirming what the president is already doing in making a level playing field.”
But Stacy and Dent said the vague language of the amendment and that it would apply to contractors throughout the federal government open the door to potential discrimination.
Stacy likened this provision expanding religious protections to the ongoing conflict in North Carolina over whether transgender people can use the restroom that coincides with their gender identity. Stacy characterized such measures as part of a broader backlash at the state level against the Supreme Court’s decision to effectively legalize same-sex marriage.
“We’re seeing this reaction in the states and, of course, the opposition to those bills is very significant. And we’re really disappointed to see some on the far right bringing this fight to Congress,” Stacy said. He later added, “We hope that Republican leadership in the House and Senate don’t end up in the same position as [North Carolina] Governor [Pat] McCrory is in, letting this legislation become a flashpoint,” Stacy said.
Stacy said this is the first time he has seen such an effort to undermine the president’s executive order. He pointed out that in July 2015, the House essentially endorsed Obama’s move, approving an amendment from Rep. Scott Peters, D-Calif., to bar government money from being used to undermine the action. The Peters amendment garnered 60 Republican votes, including now House Speaker Paul D. Ryan, R-Wis.
The Rules Committee did not include Dent’s amendment in a packet of about 60 measures on the floor Tuesday, but it could come up later.
But for Dent, his amendment also signifies how Congress should approach questions of balancing religious liberty with non-discrimination measures. He speculated that Congress could address this question again.
“We cannot let ourselves fall into this misconception that religious freedom and nondiscrimination are mutually exclusive,” Dent said. “We can and must do both.”