INDIANAPOLIS — Contractors seeking to perform work for the federal government should be exempt from certain non-discrimination rules if they show strong evidence that their purpose is substantially religious, Attorney General Todd Rokita argues in a court filing. And that means enforcing 2020 rules that clarify the manner in which contractors may qualify for such exemptions.
Under current rules, a religiously-oriented kosher catering company that mainly provides meals to synagogues could also, for example, compete for a contract to provide meals at a federal-government conference — even though such a company would explicitly hire staff on the basis of certain shared beliefs and values.
“We must remember that the framers of the Constitution sought to protect religion from government, not to protect government from religion,” Attorney General Rokita said. “Faith-based businesses should be free to compete for federal contracts on equal footing with their secular counterparts.”
Besides protecting religious liberty, Attorney General Rokita said, the rule advances Indiana’s economic interests by enabling more Hoosier companies to participate in the pool of federal contractors. Further, it benefits taxpayers by promoting greater competition among contractors to offer the best prices for their labors.
Attorney General Rokita filed a motion to intervene as a defendant in a lawsuit brought by the State of New York against the U.S. Department of Labor. The lawsuit challenges the rule clarifying the religious exemptions provided for federal contractors.
Besides Indiana, 11 other states are part of the intervention motion filed today in the U.S. District Court for the Southern District of New York.
In 1965, President Lyndon Johnson signed Executive Order 11246, which set nondiscrimination requirements on federal government contractors and subcontractors.
In 2002, President George W. Bush amended the Executive Order to exempt religious organizations from some of the Order’s nondiscrimination requirements — allowing them to prefer individuals of a particular religion when making employment decisions.” The new language left unclear, however, how to determine whether an organization qualified for the exemption.
In December of 2020, the U.S. Department of Labor under President Donald Trump issued a final rule clarifying those criteria.
On Jan. 21, 2021, the State of New York, joined by 13 other states and the District of Columbia, filed suit in federal court challenging the Department of Labor’s religious exemption clarification. A similar lawsuit opposing the labor rule was also filed by a group of organizations in Oregon District Court. Both lawsuits were stayed after the Department of Labor subsequently announced that it intends to rescind the rule, a process that is expected to take several months.
In the Alabama-led motion to intervene, Indiana and other states argue that the challenged rule provides needed clarity to federal contractors and potential contractors in their states. Each state is “home to potential federal contractors who may decide to enter the eligible pool of federal contractors and subcontractors now that it is clear that religious organizations are not disfavored in government contracting,” the motion states.
Intervention is necessary, Indiana and the other states contend, because the federal government has reversed its position and refuses to defend its own rule.
The motion is attached.