Executive order!

As has been anticipated for months – and requested for years – Obama signed an executive order banning discrimination of sexual minorities in companies with contracts with the federal government. And he did it in a good way. Obama finally signed it because ENDA isn't going anywhere.

Back in 1964 President Johnson issued an executive order prohibiting federal contractors from discriminating based on race, color, religion, sex, or national origin. Obama modified that order to add sexual orientation and gender identity.

President Nixon issued an EO that bans discrimination against federal employees based on race, color, religion, sex, national origin, disability, and age. President Clinton added sexual orientation to this list. Obama added gender identity. Some had said gender identity is already included because it is a form of sex discrimination. Perhaps. This EO removes any question.

Bush II had issued an EO saying that religious federal contractors may have a preference for those of their own religion when hiring. That is the only religious exemption in these EOs and Obama did not add to them. So the battle over generous exemptions came out decisively in our favor. Yay!

I've heard this EO covers 20% of American workers. Alas, without the cooperation of Congress (which isn't cooperating) Obama can't cover the other 80% of workers. We're in the strange legal situation in which more states permit same-sex marriage than ban discrimination of sexual minorities. So you can get married, but if your boss finds out you can be fired.

Law professor Ari Ezra Waldman on Towleroad explains what an Executive Order is and what it can and cannot do. Then he contrasts this new EO with the recent Hobby Lobby decision by the Supremes. It is possible a federal contractor owned by a religious family will refuse to sign the pledge saying they won't discriminate against gay people. They won't get the contract and will sue. How will courts, and eventually the Supremes, interpret the religious exemptions in the Religious Freedom Restoration Act (the law behind the Hobby Lobby decision)? Will the emphasis be on religion or on this ruling's declaration that it can't be used in discrimination cases?

Commenters to Waldman's post note that Clinton's protections for gay federal employees is stated policy without the force of law that the federal contract EO has. A new boss in a federal agency from Mississippi may decide to fire the gay employees under him and those former employees don't have any recourse. Obama didn't change this.