ENDA’s Problems and Potential

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.


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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.