The Senate has scheduled a vote on the Employment Non-Discrimination Act (ENDA) for Monday, and it could be the first time the Senate ever passes the bill in its 20-year history. This year, groups like the ACLU and GetEQUAL have criticized ENDA’s religious exemption, which would exempt religious organizations from ENDA’s protections for LGBT workers. Though they support the bill’s passage and the important impact it will have for LGBT people across the country who may fear losing their job if they come out, these groups worry that this compromise may be too broad.
Here’s a look back at how ENDA’s religious exemption was first introduced, how it’s expanded, and how some lawmakers may push to extend it even further.
Religious Exemptions In The Civil Rights Act of 1964 (Title VII)
As ThinkProgress previously explained, ENDA’s current religious exemption refers back to the Civil Rights Act of 1964. Title VII of that law originally prohibited discrimination on the basis of race, color, religion, sex, and national origin.
Title VII contains only one religious exemption, which applies to any “religious corporation, association, educational institution, or society.” Such groups are allowed to make employment decisions on the basis of an individual’s particular religion. The same protection is extended to any “school, college, university, or other educational institution” if the curriculum is “directed toward the propagation of a particular religion.”
This exemption does not apply to the other protected classes like sex, race, and national origin — it only says that religious organizations can discriminate based on religion.
The Original Gay Rights Bill: The Equality Act of 1974
Long before ENDA was introduced, Congress considered a bill known as the “Equality Act of 1974” (HR 14752). In addition to employment, HR 14752 also created protections based on sexual orientation for housing and public accommodations. Thanks to archivist Judy Atkins at the National Archives and Records Administration, ThinkProgress was able to obtain the full text of the bill.
Nowhere in the bill’s 14 pages is a single reference to any exemptions for religious organizations. It simply would have added “marital status” and “sexual orientation” to the Civil Rights Act alongside the other classes, with sexual orientation defined as “choice of sexual partner according to gender.” Of course, the bill did not even advance out of committee in the House, but it still shows that even 40 years ago, there were Congressional lawmakers prepared to protect the gay community without making exceptions for religious discrimination.
ENDA’s Religious Exemption 1994–2007
When ENDA was first introduced in 1994, it did contain a religious exemption, but it was a qualified one. In general, the bill read, “this Act shall not apply to religious organizations,” but it made an exception for any aspect of a religious organization’s for-profit activities:
This Act shall apply to a religious organization’s for-profit activities subject to taxation under section 511(a) of the Internal Revenue Code of 1986 as in effect on the date of the enactment of this Act.
So, as it was originally introduced, religious organizations were protected, but not any company that happens to be religious but makes money from its business. The term “religious organization” was defined as any “religious corporation, association, or society” or any educational institution managed by a religious organization with a religious curriculum.
In 1997, the language about for-profit activities was clarified a bit, but not in a substantive way, and that language remained in the bill for the 105th Congress (House ’97 and Senate ’97), the 106th Congress (House ’99 and Senate ’99), the 107th Congress (House ’01 and Senate ’02), and the 108th Congress (House ’03 and Senate ’03).
The 2007 House ENDA Bill That Failed
In 2007, the House considered two versions of ENDA. One actually ended up passing the House — only to die in the Senate — and that bill set the precedent for what today’s ENDA looks like (see below). But earlier that year, a House Subcommittee looked at a version of ENDA that offered arguably the broadest religious exemptions of any version of ENDA ever considered.
HR 2015 removed the exception related to for-profit activity and added two new provisions. The first would have extended the exemption to any employee whose primary duties involve teaching religious beliefs, even if the organization they work for does not qualify as a religious organization. The second would have also granted religious organizations permission to require any employees or applicants to conform to religious tenets without being in violation of the legislation. In other words, the bill not only gave religious groups a license to discriminate, it provided them with ideas about how to go about it:
(b) Certain Employees- For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.
(c) Conformity to Religious Tenets- Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act.
This expanded exemption has not appeared in any other version of ENDA.
ENDA Since 2007
Since 2007, ENDA’s religious exemption has refers back to Title VII of the Civil Rights Act of 1964, expanding it such that any organization that was granted an exemption to discriminate based on religion is also exempted from ENDA:
This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)).
This language is still a step removed from the versions of the bill offered in years past because it no longer makes an exception for for-profit activities. It appeared in the bill that did pass the House in 2007, as well as versions offered in the 111th Congress (House ’09 and Senate ’09), the 112th Congress (House ’11 and Senate ’11), and now in the 113th Congress.
Religious Exemptions That Could Still Be Introduced
Religious organizations would not be impacted by ENDA as it’s currently written, but the legislative record suggests that some lawmakers may want to do even more to protect religious discrimination against the LGBT community. Based on other recent ways that so-called “religious liberty” has been discussed by conservatives, here are two other troubling ways the religious exemption might be expanded:
Expand The Definition Of A “Religious Organization”
In 2010, a Ninth Circuit panel of judges established a new test for what qualifies as a religious organization. According to the final updated ruling, this test would allow any non-profit that describes its founding mission, work, identity as religious could qualify for a religious exemption, even if they are not directly involved in religious ministry. If ENDA were to adopt this definition, it could create a loophole for many more organizations to discriminate against LGBT people.
Allow Anyone To Discriminate If It Would Burden The Employer’s “Conscience”
In September, House Republicans proposed the “Marriage and Religious Freedom Act” (MARFA), which would implement a nationwide “license to discriminate” for any business that wanted to refuse services related to a same-sex couple’s marriage. If this same exemption were added to ENDA, it would basically make compliance with the law optional, allowing employers to fire or not hire LGBT employees according to the whims of their conscience, even if their business has nothing to do with religion.
It remains unclear why LGBT people should be entitled to less protection under the law than other protected groups. Still, even with ENDA’s current religious exemptions, the legislation would go far to protect the jobs of LGBT people. It would allow them to feel safer to come out at work, improving their mental health, their productivity, and even the productivity of their colleagues.