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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.

EqualityThe 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, Portmanspokespersons 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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Comments

  1. But couldn't a judge look at the broad religious exemption in ENDA, see that such a broad religious exemption does not exist in other anti-discrimination legislation, and conclude that gays were singled out for (mis-)treatment?

    Posted by: Marty | Nov 6, 2013 9:10:29 PM


  2. Yes, but in order for that precedent to be sent, someone must experience the law as is and bring a suit to challenge it.

    Posted by: yuninv | Nov 6, 2013 9:27:54 PM


  3. "'There’s nothing we do that’s perfect,' Reid said. 'The goal is to get something passed, move forward. And this allows us to move forward.'"

    Nothing is perfect, but their pursuit is at most mediocre. This is why this Congress have enacted failed programs like the Bail out and Cash for Clunkers. I think it is fair to say that we expect a genuine pursuit for excellence in those who represent us.

    Posted by: Rafael | Nov 6, 2013 9:57:20 PM


  4. It started out as a non-discrimination bill, then morphed into something else. Another example of how religion poisons everything.

    Posted by: simon | Nov 6, 2013 10:12:47 PM


  5. It is staggering that this discussion is taking place BEFORE the bill has even passed 1 chamber of Congress. Sabotage really. In reality, first you pass ENDA, then you fix it. This critique of the religious exemptions is hurting the bill's chances. Stop it. Just shut up for a minute, and work to get Enda passed at last?

    Posted by: Alex M. | Nov 6, 2013 10:17:09 PM


  6. I quote from above: "that would prevent any organization that invokes the religious exemption from being penalized by some arm of the state." It does not say Church. What is to stop ANYONE or organization from claiming a religious exemption? Without some clear limits, it could gut the whole thing.

    Posted by: Dave C. | Nov 6, 2013 10:26:26 PM


  7. As Marty said, it is not only discriminatory, it is clearly unconstitutional. As for tax exempt status, it only allows religion to sneak in because it is masqueraded as "charity".

    Posted by: simon | Nov 6, 2013 10:32:40 PM


  8. Alex M:
    What is the point? It won't pass the House anyway. Their excuse is "small business", not religion.

    Posted by: simon | Nov 6, 2013 10:38:39 PM


  9. I have an idea. Why not put in an amendment of "small business" exemption?

    Posted by: simon | Nov 6, 2013 10:39:58 PM


  10. Exactly, Simon. Does anyone here imagine the Republicans in the House will support this this time around?

    Posted by: Victor | Nov 6, 2013 11:28:28 PM


  11. Soon Christian "businesses" (what a silly concept) will just form some sort of business association and then claim that they are a Christian organization.

    Posted by: Steve | Nov 7, 2013 3:18:01 AM


  12. Legal reform tends to proceed incrementally, and some of the steps lead to detours, such as domestic partnerships on the road to marriage equality, Don't Ask Don't Tell on the road to military equality, or Medicare and the Affordable Care Act on the road to universal medical services.

    Ari's hypotheticals are worth looking at, but the bottom line has to be a variant of Reagan's question: are you better off now than you were then?

    Posted by: Rich | Nov 7, 2013 2:51:03 PM


  13. "no one wants to force a church or synagogue to do something that its liturgy tells it not to"

    Not true. I certainly want to force them to do ANYTHING their liturgy tells it not to, so long as every other person has to do it. The time is overdue for the religious exemption to the regular law to end.

    Posted by: Randy | Nov 12, 2013 12:16:36 PM


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