Simmering Divide Over ENDA’s Broad Religious Exemption
Congress has returned to Washington after its month-long summer recess, and as a historic Senate vote draws nearer on the Employment Non-Discrimination Act, lingering divisions over the legislation’s religious exemption could set the stage for a battle between advocates in the months ahead.
During a panel discussion in New York City last week hosted by Freedom to Work as the first part of its "ENDA Situation Room" series, a bipartisan panel met to "plot a path forward" for the bill, which has languished in Congress for decades. But that path forward rapidly became mired in a debate over whether ENDA’s religious exemption as written would open the door to LGBT discrimination in places far beyond churches and synagogues, and whether narrowing ENDA’s religious exemption would cause shaky Republican support to collapse entirely.
According to Tico Almeida, president of Freedom to Work, the religious exemption as written has proven popular among Republicans who might not otherwise support ENDA and is the "sweet spot of both law and politics."
"I think it is the best of all of the options because it provides clarity," Almeida said. "It creates a 100 percent match with the entities that are exempt from Title VII religious provisions [of the Civil Rights Act]. So we have 40 years of case law, we have 40 years of precedent, we have 40 years of experience that will let religious employers know whether they are covered by ENDA."
Almeida bears a special relationship with the current religious exemption: He helped write it. As chief counsel for ENDA in the House of Representatives from 2007 to 2010, Almeida was one of two individuals who helped craft its current language. The bill states that ENDA "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," which prohibits workplace discrimination on the basis of race, color, religion, sex or national origin.
But while Almeida has fervently defended the language, several prominent organizations have said it’s just not good enough.
The American Civil Liberties Union (ACLU), Lambda Legal, the National Center for Lesbian Rights (NCLR) and the Transgender Law Center released a joint statement in April "expressing very grave concerns with the religious exemption in ENDA."
"It could provide religiously affiliated organizations -- far beyond houses of worship -- with a blank check to engage in employment discrimination against LGBT people," the statement continued. "It gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual’s race, sex, national origin, age, or disability. This sweeping, unprecedented exemption undermines the core goal of ENDA by leaving too many jobs, and LGBT workers, outside the scope of its protections."
They argue, for example, that the religious exemption as written could allow for a Catholic hospital that employs people of other faiths to still be able to fire or refuse to hire an LGBT person.
Even at last week’s "ENDA Situation Room," Evan Wolfson of Freedom to Marry -- the organization on which Almeida has modeled Freedom to Work -- said he had "grave concerns" with the religious exemption.
Critics of the religious exemption have continued to walk a fine line between applauding ENDA’s advancement with bipartisan support, while also insisting the provision must be addressed. But as Almeida and groups lobbying Republican members of Congress insist, narrowing the religious exemption would sacrifice Republican support and eliminate any possibility of ENDA’s passage.