ENDA's Problems and Potential

By ARI EZRA WALDMAN

The Employment Non-Discrimination Act (ENDA), which would protect millions of Americans from being fired from their jobs simply because of their sexuality, will likely pass the United States Senate soon. A small handful of Republicans (Sens. Collins, Hatch, Heller, Portman, Ayotte, Kirk, and Toomey) joined every Democrat and Democratic-aligned Independent to overcome a Republican filibuster that would have prevented the Senate from even discussing the bill. The bill will most likely never pass the Republican-controlled House.

The discussion on ENDA now turns to the law's religious exemptions. I wrote previously about the dangers of those exemptions: they are gaping holes in equality that threaten to make equality meaningless if left unchecked. Controversy surrounding those exemptions occupied nearly an entire hour of discussion during the "ENDA Situation Room," an expert roundtable streamed live here on Towleroad, hosted by leading ENDA advocate and Freedom to Work Founder Tico Almeida and co-hosted by New York Law School. What to do about proposed exemptions is dividing leaders of the gay community, pitting Lambda Legal and Human Rights Campaign advocates on different paths.

Not all religious exemptions to equality laws are bad; no one wants to force a church or synagogue to do something that its liturgy tells it not to. But a cavalier approach to these exemptions could be very bad. The ENDA religious exemption debate is not, counterintuitively, just about exemptions to ENDA's application. It is about future judicial interpretations of ENDA. It's about every future LGBT equality law. It is about accepting that LGBT equality is some special category of equality that unnecessarily gets a shorter reach, like swiss cheese with extra holes. It is about elevating and changing an unrelated right to an antagonist of equality. And every religious exemption that we let slide weakens our position on all of these issues in the next fight.

Continued AFTER THE JUMP.

Let's focus on two Republican amendments to ENDA. Ohio Republican Senator Rob Portman (pictured), a man made famous by his son's coming out and his becoming the first sitting Republican senator to support marriage freedom for gays, has introduced an amendment that would prevent any organization that invokes the religious exemption from being penalized by some arm of the state. Kelly Ayotte, the Republican from New Hampshire, has joined with Portman and Senators Heller, Hatch, and McCain to push the amendment. That amendment has been adopted.

According to BuzzFeed's Chris Geidner, spokespersons for the Human Rights Campaign, Freedom to Work, and the ACLU all had the same basic response: Senator Portman's amendment is "unnecessary." The ACLU went a bit further in its conversations with Mr. Geidner, mentioning that the exemption in ENDA would be "unprecedented." But despite some groups, like the ACLU, raising concerns about the religious exemptions, Chris Johnson of the Washington Blade shows us that there is simply no urgency, no stomach for a fight over the religious exemptions. Our community's goal, Mr. Johnson discovers, is merely to raise the issue. The ACLU told Mr. Johnson that "it’s certainly [their] hope more and more pro-equality members of Congress and their staff will come to understand the potential harm of the current exemption."

That's it?

HRC, Freedom to Work, and ACLU leaders are engaging in the art of the possible. ENDA needs 60 votes to pass. To get sixty votes, it needs Republicans. To get a sufficient number of those Republicans, it needs to pay homage to religious liberty. To fight against that political reality is at once silly and dangerous to the organizations' future influence.

But no one is talking about what today's cavalier approach will mean for tomorrow's fights.

When you say something is "unnecessary," you may be saying you're indifferent: "yeah, go ahead and have a dessert, but I don't need one." You're fine with your dinner date eating dessert, so you won't bother objecting and won't get one for yourself.

But we can never be indifferent to anything that restricts our basic human rights.

Indifference today means that we have to be indifferent later when the same, broad religious exemption is proposed for other LGBT equality laws. But that's a political calculation, and I will leave that to those whose political brains are more honed that mine.

It is also a legal minefield. Future litigation involving ENDA will not just implement the sexual orientation protections in the workplace; it will also determine the exact contours of the religious exemption. The law will also have precedential reach beyond the narrow confines of workplace discrimination. Here's how:

Religious freedom is the cause celebre of conservatives opposed to LGBT equality. They rally around it as a reasonable-sounding and politically palpable pretextual expression of their distaste for homosexuality. When we show indifference to their strategy by letting in their exemptions, we legitimize their pretexts.

Soon, there will be a federal lawsuit challenging a religiously-affiliated organization discriminating against an LGBT person or couple in the provision of services. At that point, a judge will go back and try to determine the balance between equality and religious freedom. He or she will write an opinion discussing this country's long history of treating people equally. But the judge will eventually be confronted by the uncontroverted fact that LGBT equality laws have broader religious exemptions than equality laws focusing on other groups. To any judge that will mean that society (via Congress) has made a decision that religious freedom enjoys a privileged position relative to gay equality. And that will mean that religious freedom will likely beat out LGBT equality when the two rights come in conflict.

The judge will also look at what lawyers call "legislative history," or evidence of Congress's meaning and intentions when it passed a law. Democrats' failure to oppose the broad religious exemption in ENDA will allow a judge to conclude that the only reason ENDA passed was because of the religious exemptions and that liberals seemed on board with the religious exemptions. They called it "unnecessary," they didn't oppose it. So, when a close call comes before a judge -- and most cases that get to court are close calls rather than obviously answered by settled law -- any court could interpret ENDA's legislative history as endorsing religious liberty over LGBT equality.

To their credit, our allies in the Senate appear to be willing to oppose an amendment by Pennsylvania Republican Pat Toomey, which would expand the scope of the religious exemption to, among other groups, for-profit companies that could simply cite religious reasons for firing a gay employee.

But opposing making a broad exemption even broader is a no brainer. Our advocates should be thinking about the future on "unnecessary" amendments, as well.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Final Senate Vote on ENDA Set for Thursday Afternoon

The final Senate vote on the Employment Non-Discrimination Act is set for Thursday afternoon, The Hill reports:

On Thursday, the Senate will vote on a GOP amendment to expand religious exemptions under the bill before voting to end debate on the measure. If Democrats get 60 votes to end debate, the Senate will then vote on final passage at 1:45 p.m.

While many are calling the bill a non-starter in the House because Speaker John Boehner opposes the legislation, Senate Majority Leader Harry Reid was expressing optimism at a meeting with reporters today, reports Chris Johnson at the Washington Blade:

Amid concerns that moving the bill in the House would be a non-starter given the Republican leadership’s opposition, Reid said he “wouldn’t be too sure about that.”

“I think the House is going to have to capitulate,” Reid said. “If they have any hope of a president that can be a viable candidate, or they think they can elect some Republicans, and want to hang on to the House, they’ve got issues.”

After saying on the Senate floor Tuesday he thinks the bill would pass the House if it were allowed to come up for a vote, Reid reaffirmed that belief to reporters, saying passage would be “easy.”

Reid dismissed the idea of a discharge petition to move the bill and also rejected attaching it to larger legislation like a defense bill:

Instead, Reid said the better path is to make “one loud chant” to pass the bill along with legislation related to immigration, marketplace fairness, postal reform as well as the farm bill to make the House look like it’s “living in some other world.”

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Thanks to the U.S. Supreme Court decision this summer invalidating the Defense of Marriage Act, which prohibited married same-sex couples from obtaining federal benefits, couples in non-marriage equality states in the Midwest--say, for example, Missouri or Wisconsin--have been able to wed in nearby marriage equality states to access at least some of the benefits of marriage.  As Al Jazeera America reports, Scott Emanuel and Ed Reggi of Missouri have become a pair of unexpected heroes on that front:

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Dubbed the Marriage Equality Bus, the project was born from Emanuel and Reggi’s own love story. They were surprised when the Iowa Supreme Court legalized same-sex marriages in that state in 2009, and the decision offered an opportunity. Iowa had become an unexpected solution to a unique problem facing LGBT couples in the Midwest.

“We found a few friends who wanted to go and get married too,” he said. “Then it expanded. Then we had more than a van.”

Emanuel and Reggi ended up chartering a bus with 16 other couples. After the first bus trip, word spread, and they haven’t stopped since.

“It’s the first time a lot of couples see their names on a document together,” Emanuel said. “That’s significant.”

With Illinois days away from becoming the 15th state to allow same-sex couples to marry (Gov. Pat Quinn has said he will signed the legislature-approved bill into law sometime this month), couples in Missouri and other nearby states without marriage equality will have a new, closer option than Iowa where there can get married.  For couples in Missouri, a state with deep red majorities in both houses of the legislature and no laws prohibiting employment discrimination against LGBT people, that's a very good thing, indeed.

Check out a short film about Emanuel and Reggi's Marriage Equality Bus, AFTER THE JUMP...