Several prominent LGBT and allied organizations announced Tuesday that they would be abandoning support for the Employment Non-Discrimination Act (ENDA), which would prohibit workplace discrimination on the basis of sexual orientation and gender identity. Their primary complaint is that ENDA’s religious exemption goes too far to excuse discrimination against LGBT people — particularly in the wake the Supreme Court’s Hobby Lobby decision last week.
As currently drafted, ENDA contains a provision that allows any religious organization that qualifies to discriminate on the basis of religion — e.g., a Catholic group is permitted to only hire Catholic employees — to also continue discriminating against LGBT workers. Rea Carey, executive director of the National Gay and Lesbian Task Force, wrote today that this exemption “will serve as a template — a new floor, not a ceiling,” for many other matters that affect the LGBT community, including other nondiscrimination protections, marriage, HIV/AIDS treatment, and reproductive health services. “There is nothing inherently inconsistent between religion and living our lives freely as LGBT people,” she wrote, which is why The Task Force does “not need to settle for a law that has a loophole this large.”
Following The Task Force’s announcement, the ACLU, joined by several LGBT legal groups, reiterated their opposition to ENDA’s religious exemption and withdrew their support for the bill as drafted. Highlighting the successful defeat of the Arizona bill that would have enabled religion-based discrimination, the groups declared that ENDA should reflect Americans’ opposition to these exemptions: “Until the discriminatory exemption is removed so that anti-LGBT discrimination is treated the same as race, sex, national origin, age, disability, or genetic information under federal workplace laws, we think ENDA should not move forward in Congress.”
It seems some lawmakers are similarly wavering in their support for the bill as written. Rep. Jerry Nadler (D-NY), who has long supported LGBT employment protections, told the Washington Blade that he’s “very concerned” about ENDA’s religious exemption and unsure whether he could vote for it were it to make it to the floor.
Meanwhile, the Human Rights Campaign, the largest LGBT lobbying organization, continues to support ENDA because “it will provide essential workplace protections to millions of LGBT people.”
ENDA passed the Senate in November for the first time in the 20 years that it’s been proposed in Congress, a milestone that was celebrated. It has stalled in the House since then, with Speaker John Boehner (R-OH) insisting that there is “no way” it advances this year. President Obama’s recent announcement that he will sign an executive order protecting the LGBT employees of federal contractors — combined with the expansion of religious liberty in the Hobby Lobby decision — has reignited the debate as to whether religious groups should enjoy a special exemption from the policies. As the legal groups observed, “Opponents of LGBT equality are already misreading that decision as having broadly endorsed rights to discriminate against others.” Indeed, religious organizations have already demanded creating a similar exemption in the executive order, but other religious groups oppose the carve-out.
ENDA has contained some form of religious exemption since it was first introduced in 1994. The original exemption applied only to religious organizations’ non-profit activities, continuing to require their compliance for all for-profit activities. This was expanded slightly in 2007 and moreso thereafter such that any religious organization that is allowed to discriminate on the basis of religion according to the Civil Rights Act of 1964 would be allowed to continue discriminating on the basis of sexual orientation and gender identity as well. These groups are not exempted from discriminating on other bases like race or national origin, making ENDA’s exemption an unprecedented expansion of religious privilege.