September 12, 2013 | by Chris Johnson
Religious exemption inspires heated debate at ENDA panel
Freedom to Marry's Evan Wolfson (left) and Freedom to Work's Tico Almeida had heated exchange on ENDA's religious exemption (Blade file photos by Michael Key).

Freedom to Marry’s Evan Wolfson (left) and Freedom to Work’s Tico Almeida had heated exchange on ENDA’s religious exemption (Blade file photos by Michael Key).

NEW YORK — The appropriate scope of the religious exemption in the Employment Non-Discrimination Act continues to stir debate as a prominent marriage equality advocate on Thursday made a surprise endorsement of narrowing the broad provision in the bill.

Evan Wolfson, president of Freedom to Marry, said he shares the “grave concerns” expressed by the American Civil Liberties Union over the religious exemption — which he said would “carve coverage by certain kinds of entities for LGBT people” — during a panel as part of Freedom to Work’s premier “Situation Room” in New York City.

“I do have grave concerns about the specific language in the specific bill,” Wolfson said. “That’s one of the points of difference I have with Freedom to Work on this current bill.”

Currently, ENDA has a religious exemption that provides leeway for religious organizations, like churches or religious schools, to discriminate against LGBT employees. That same leeway isn’t found under Title VII, which prohibits religious organizations from discriminating on the basis of race, gender or national origin.

Wolfson and Tico Almeida, president of Freedom to Work and proponent of the religious exemption, were the lone speakers on the second panel of the day. Wolfson’s main purpose on the panel was to talk about the lessons the campaign to pass ENDA can learn from the marriage equality fight.

Almeida initially responded by saying the religious exemption has value in allaying concerns from Republican lawmakers who are undecided on ENDA.

“I would say that in a bunch of Republican meetings we spend a majority of the time talking about the religious exemption and exactly how it will apply, what the case law is,” Almeida said.

Almeida co-wrote the current version of the religious exemption when working as a staffer for Rep. George Miller (D-Calif.). It was passed as an amendment on the U.S. House floor in 2007 to a gay-only version of ENDA by a vote of 402-25.

But Almeida qualified his support for the religious exemption by saying he believes religious organizations shouldn’t be able to receive federal funds if they discriminate against LGBT people. But, Almeida continued, the mechanism to prohibit this discrimination isn’t ENDA; rather, it should be a workplace non-discrimination executive order signed by President Obama.

“I think there’s complete uniformity that we are all pushing for a federal policy that if you take and profit from federal dollars, you must follow American values, you must pledge not to discriminate against LGBT folks — and if you get caught, there should be consequences,” Almeida said.

But Wolfson quickly retorted as the panel developed into a heated debate between him and Almeida that seemed to become almost hostile as the session closed.

“We have a body of laws across the country that include sexual orientation and gender identity as prohibited discriminatory classifications alongside race, sex and others — and they have all followed generally a certain kind of exemption — as had Title VII and the Civil Rights Act, and so on,” Wolfson said. “The problem with this current draft of ENDA is that exemption goes far beyond what that body of experience has taught us is the right balance.”

Wolfson added the argument in favor of ENDA to undecided lawmakers should be to look at existing law throughout the states as opposed to enshrining “new and unnecessary and dangerous exemptions from non-discrimination law.”

“By the way, calling them religious exemptions implies that there’s some religious problem to be solved,” Wolfson said. “There is no religious problem to be solved: what these are are licenses to discriminate.”

Almeida, a Catholic, responded by saying he thinks attitudes should change within the church by action from members of that particular faith.

“I don’t believe civil rights statute in the form of Title VII and ENDA should be used to force the Catholic Church to make a change to its policies,” Almeida said. “I think we will push them, and it may take decades, and it may take more than my lifetime, but we will push them in other ways.”

Almeida added he doesn’t understand the argument the religious exemption in ENDA is a new approach because he said he “literally copied and pasted it from Title VII.”

Besides, Almeida also said groups that oppose ENDA’s religious exemption missed an opportunity to propose an amendment when the Senate Health, Education, Labor & Pensions Committee voted on the bill in July. Also, he challenged them to make public the language they would prefer instead.

“I would love for those organizations to publicly communicate to the LGBT community and to Congress what is their proposal,” Almeida said. “They made a big fuss …,  and they didn’t seek an amendment at markup. They didn’t ask any of our progressive champions, and there are very progressive champions on that committee, or if they asked, then they got rejected.”

Wolfson countered by saying Almeida’s proposal to change the Catholic Church from within is “completely irrelevant” to the conversation of putting a “license to discriminate” in a statute.

“Nobody is saying that the Catholic Church should be sued or told what to do as a matter of law when it comes to doctrine or the church, or ministers,” Wolfson said. “That’s misleading language that might confuse people in a way that you didn’t intend.”

Additionally, Wolfson said Almeida was mischaracterizing the religious exemption in ENDA by saying it’s lifted from Title VII. Almeida conceded that point on the panel.

“To say that something has some degree of religion in it, but now that it’s in the marketplace, it can now fire not just the priest, but the janitor, that’s an exemption that doesn’t exist in Title VII or any other parts of law,” Wolfson said.

Concluding his argument, Wolfson said the religious exemption issue must be resolved because it’s giving fuel to the anti-LGBT forces seeking to thwart ENDA passage.

“The religious exemption language thing is mostly a distraction, it’s a non-and-wrong solution to a non-problem, but becomes important if it get put into law,” Wolfson said.

Ian Thompson, legislative representative for the ACLU, told the Blade after the panel he commends Wolfson for endorsing a narrower religious exemption for ENDA, calling the news “a great development.”

“As a leader of the freedom to marry movement, he knows as well as anyone the importance of rejecting overly broad religious exemptions,” Thompson said.

Further, Thompson responded to Almeida’s claims that narrower language on religious institutions hasn’t been proposed by pointing to existing law.

“The alternative to ENDA’s unprecedented religious exemption has been and remains crystal clear,” Thompson said. “Just as our civil rights laws have never permitted blank checks to discriminate based on race, sex, national origin, age, and disability, they must not now do so based on sexual orientation and gender identity.”

Discussion of the religious exemption also came up during the first panel of the day, which consisted of six speakers from a bipartisan group of LGBT organizations. Paul Schindler, editor-in-chief of Gay City News, asked the panel if they were comfortable with the language.

Gregory Angelo, executive director of the National Log Cabin Republicans, started off the discussion by saying he was “comfortable” with the current wording because it’s hard enough selling the bill as it is.

“Without naming names, there are meetings that I have had with Republicans — both in the House and the Senate — where there’s some Republicans who don’t feel those religious protections go far enough,” Angelo said. “We’re pushing back against that. I think the protections as they exist now are strong, they’re solid.”

Melissa Sklarz, a transgender Democratic activist from Stonewall Democrats of New York City, seemed to support the exemption on a temporary basis as a way to win support for the bill, saying it won’t hold up in court and is just “a barrier to try to win allies” on the Republican side.

“It’s a good idea,” Sklarz said. “We watched them fight LGBT equality in ‘Don’t Ask, Don’t Tell’ and we’ve watched it in marriage. As they keep throwing things at ideas that prevent equality, they will not stand up. If this is going to win allies among the moderate and right-wing so we can get it to the floor, then great.”

Asked by Schindler whether under the current religious exemption he could be fired at a Catholic hospital or a Mormon book store, Almeida replied, “It depends.”

“It depends on the facts,” Almeida said. “Law has very few bright line tests, and neither the Title VII religious exemption, nor the ENDA religious exemption, list types of organizations. So, courts have created factors that are considered.”

Almeida said courts have established that for-profit businesses are eligible for the religious exemption under existing law. But he acknowledged that organizations like the Catholic Church and Catholic Charities will be able to continue to discriminate against LGBT people in hiring and firing decisions.

“By tying the ENDA religious exemption explicitly to the Title VII religious exemption, that gives us the most clarity, and as a byproduct, and for me it’s just a byproduct, it’s going to be the one to help us win,” Almeida said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

16 Comments
  • No religious carve outs in legislation are required as those people are covered under the 1st Amendment.

  • Oh it’s a bear fight! Let’s get these chunky boys greased up and make them wrestle it out shirtless.

  • Seriously now, this debate has been going on since my high school day’s in the 70′s in one form or another. Personally I believe it is time to stop debating, and to act on this. religious exemptions were carved out long ago, and other than clarification, and a few tweaks should be entirely adequate. Long ago, when I was in school we were taught that religions did not have the right to incite hate, and violence, yet this is rampant, and unprosecuted. Why not put some focus on this as well? I see Mr. Almeida’s position as being untenable, and just placing more delay’s on this. As well from a past comment section from the Bilerico Project, and an article by Mr. Almeida years ago I myself believe that Mr. Almeida would sell lout the Trans community in a heartbeat.

  • There is no race homosexuals, no gender of homosexuals (gay chromosomes), nor is there a nation of homosexuals. You cannot make discrimination laws for behavior.

    • Nobody is born religious. Being religious is a learned behavior that people need to be indoctrinated into.

    • Indeed, if you didn’t blatantly discriminate against the LGBT community there wouldn’t be a need to protect this community. But you do and so this “behavior” as you wrongly categorize it, is a deeply engrained part of millions of Americans lives.

      So instead of allowing you to continue to openly and wrongly exclude gays, lesbians and transgender persons from participating equally in employment, housing, public accommodations and other public venues with dirty underhanded tactics ENDA will stop your discriminatory practices.

      Sometimes peoples lives don’t fall into neat little categories like you seem to need. But I know I have the same right to work, housing, faith and entertainment as anyone else.

  • As an atheist, I find most religions silly, but I don't see why we have to insist that even organizations or businesses who are deeply opposed to hiring gays for religious reasons must be forced to do so. It smacks of the same intolerance the right so often exhibits against us, and it certainly feeds the paranoia many religious conservatives have about their religious freedom being degraded. In many cases, they're dead wrong, but on this issue, they have a point. The religious exemption should stay in the bill, and it certainly enhances its chances of passage.

  • If we can get this bill passed with the exceptions in it we should especially if we take most of them out and we lose the vote

  • Exemption or Federal funding… let the religious people decide which. If the exemption stays then tax payers, gay or straight, who do not agree should get a tax exemption to reflect their refusal to support such discrimination which may very well be against themselves.

  • If you take public funds, you can't discriminate. If you serve the general public in a place of business, you can't discriminate. If you are a religious institution and take state, federal or local funds, you can't discriminate. Religious institutions can refuse to marry, baptize, bury people who aren't members of their congregation or faith. Let's keep the wall of separation of church and state in place.

  • And let's be clear, "taking" also involves the special tax exemption.

  • There should be NO religious exemption for benign innate immutable natural HUMAN Characteristics such as sex gender sexuality handedness race and ethnicity – Never ever.

    Human beings should not be rated to have second class rights for how they were born, who they are!
    They should be equal in law and liberty.
    Religious freedom is not a liscense to discriminate, harm or impinge on others human freedoms.
    Please lets all take a reality check; you do not get to abuse or harm other people because you have a religious belief, however sincerely held!

  • Substitute race for sexual orientation and you will realize how insane your argument is. Under your theory, any business can have a religious objection that would basically make the law useless. What if a company had a religious objection to women working outside the home? Or interracial marriage? As a fellow atheist, I find your resignation to such blatant discrimination troubling. You of all people should be against giving the religious the ultimate trump card.

  • Absolutely! I am very skeptical of this Almeida guy – for some reason he still belongs to a church that says he is "intrinsically disordered" and I guess he has internalized this inferiority. He can bow and scrape to the Church all he wants but the rest of us shouldn't have to defer that superstitious non-sense.

  • Oh, I just saw you worked for Cato. That explains everything. Dude, you may call your self an atheist but you just have just as much of an irrational faith in libertarian ideology as christians do in the Trinity. You r cult doesn't believe in ANY anti-discrimination laws so of course you could care less about anti-gay discrimination.

    PS – Have fun sucking on that Koch tit…

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