November 3, 2013 | by Chris Johnson
ENDA’s religious exemption still concerning as vote nears
Sherrod Brown, Democratic Party, Ohio, gay news, Washington Blade, United States Senate

Sen. Sherrod Brown believes the religious exemption in employment discrimination law should be the same for LGBT workers as with other categories (D-Ohio) (Photo public domain).

Shortly after filing cloture on the Employment Non-Discrimination Act, Senate Majority Leader Harry Reid (D-Nev.) held a 30-minute conference call with Nevada LGBT leaders late Thursday in anticipation of the bill coming to the Senate floor this week.

Among those on the call was Derek Washington, lead organizer for the LGBT group GetEQUAL Nevada, who said he raised with Reid concerns about ENDA’s religious exemption.

That language would provide leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if ENDA were to become law. It’s broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

“I mentioned to him that it was something that just was not palatable,” Washington said. “I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”

That account was corroborated by Faiz Shakir, a Reid spokesperson, who said the Democratic leader understands the concerns, but wants to get the bill passed first, then go back and address the exemptions.

“Sen. Reid’s first priority is to pass the strongest possible legislation which can garner 60 votes,” Shakir said. “He believes the current legislation meets that test.”

Washington was unfazed by Reid’s response that the religious exemption won’t see change before passage, insisting the Nevada Democrat is one of the greatest champions for the LGBT community, noting, among other things, he was the first elected official to endorse the National Equality March in 2009.

“I think it would a shame to write a story about any of this without mentioning that that man is a hero to us, and I don’t think people get that,” Washington said.

That symbolizes the situation with narrowing the broad religious exemption in ENDA before the Senate approves the bill. Despite concerns that it’s too expansive, the idea of limiting it at this time — such as the amendment process — isn’t getting a lot of traction either from LGBT advocates or lawmakers.

Instead, those with concerns over ENDA’s religious exemption have more modest aspirations: Get LGBT friendly lawmakers in the Senate to speak out against the language on the Senate floor.

Ian Thompson, legislative representative for the American Civil Liberties Union, is among those saying he’s not seeking an amendment to religious exemption on the Senate floor, but wants the provision addressed in some way.

“By doing that, it’s certainly our hope more and more pro-equality members of Congress and their staff will come to understand the potential harm of the current exemption, and I think we’ll see growing support for narrowing it moving forward,” Thompson said.

Thompson added he’s “definitely hopeful” that senators will speak out against the exemption of the floor, but declined to name any prospects for who would articulate concerns.

Heather Cronk, co-director of GetEQUAL, said her organization “didn’t anticipate” being able to change the religious exemption, but is looking for senators to speak out against the language.

“What we were hoping for for — which hasn’t happened yet because the senators haven’t gone to the floor yet — is for some of the more progressive senators to speak out from the floor against the religious exemption,” Cronk said. “So, we’ll wait and see what happens on the floor to see if we get those statements.”

GetEQUAL has petitioned four senators with a reputation for being champions of progressive values — Sens. Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio) and Al Franken (D-Minn.) — to speak out against the religious exemption. As of Sunday, the petition has just under 6,000 signatures.

It remains to be seen whether any senator will speak out in favor of limiting the religious exemption when ENDA comes to the Senate floor this week. Of these four senators, the only office who responded to the Washington Blade’s request to comment on the extent of the religious exemption was that of Brown.

Meghan Dubyak, a Brown spokesperson, said the senator’s focus is passing is ENDA, although he shares the belief the religious exemption for LGBT discrimination should be the same it is for other categories.

“Sen. Brown’s top priority is overcoming a likely filibuster and ensuring passage of ENDA,” Dubyak said. “He believes the religious exemption in ENDA should be consistent with the federal law that currently protects people against discrimination.”

In July, Gillibrand said during a Third Way event that said she’d go even further and amend ENDA to remove the religious exemption. However, her staffers have apparently backtracked from that statement as they’re now mum on the issue.

For its part, the White House is staying out the argument over the religious exemption. Shin Inouye, a White House spokesperson, reiterated in an email weeks ago President Obama supports ENDA, but is leaving the details to Congress.

“We look forward to lawmakers moving forward on this bill that upholds America’s core values of fairness and equality,” Inouye said. “While we defer to Congress on the specifics of the legislation, we believe lawmakers will be able to find a balance that protects LGBT workers and religious liberty.”

Since the introduction of ENDA this year, the ACLU has called for narrowing the religious exemption along with groups like GetEQUAL, the National Center for Lesbian Rights, Lambda Legal and the Transgender Law Center, the National Gay & Lesbian Task Force.

On the other hand, groups working on like Freedom to Work, the Human Rights Campaign and the Center for American Progress have endorsed the current exemption in ENDA.

Tico Almeida, president of Freedom to Work, co-wrote the religious exemption currently found in ENDA while working as a House staffer in 2007. Neither he nor HRC responded to multiple requests to comment for this article.

Winnie Stachelberg, vice president of external affairs for the Center for American Progress, said the religious exemption is necessary to enable bipartisan support to move the bill forward.

“The current religious language reflects a bipartisan compromise that represents a pragmatic balance between ensuring that LGBT workers have the protections they need and organizations,” Stachelberg said. “While the religious exemption is broader than other civil rights statutes it will ensure that LGBT workers have the protections they need.”

If anything, the movement in the Senate on ENDA’s religious exemption this week may be more toward expanding it even further.

Sen. Rob Portman (R-Ohio), seen as a potential supporter of ENDA, has said he’s behind the basic premise of the legislation, but has concerns about restrictions on religious liberties and wants to strengthen the bill to ensure they’re protected.

Prior to the committee vote on ENDA in July, Sen. Rand Paul (R-Ky.) had prepared an amendment that would replace the bill’s religious exemption with more comprehensive language for religious employers. It was never brought up before the committee. Paul’s office didn’t respond to a request to comment on whether the senator would introduce the amendment on the Senate floor.

Concerns over the existing religious exemption were ramped up last month when Tippi McCullough, formerly a teacher for 15 years at Mount St. Mary Academy in Little Rock, Ark., was forced to resign after the school learned she had married her same-sex partner in New Mexico. Because the school is a religious institution, it would not be subject to liability under ENDA.

Thompson said the consequences of passing ENDA with its current exemption in place are hard to predict, but said it would be “a dramatic, and from our view, and very troubling expansion of an exemption like this in our federal civil rights law.”

“I think that it wouldn’t be too into the future before we saw instances of employment discrimination occurring against workers who should be protected from employment discrimination and may find out that because the scope of the existing religious exemption that they may not be,” Thompson said.

LGBT advocates who oppose the religious exemption chose their words carefully about whether they want to see ENDA passed this year with the current language — as opposed to letting it die in Congress so that it could be passed with a narrow exemption at a later time.

Thompson said the ACLU has been a “longtime champion of ENDA” because of the protections in the bill “are critically important and long overdue.”

“We’ve endorsed it, so that’s a position that we’ve taken,” Thompson said. “We have consistently, also though, raised concerns about the scope of the religious exemption and said that that is should be appropriately narrowed ultimately before it ends up on the president’s desk, and that’s our view, but at the same time because of the protections that it would afford to LGBT people are so important and so needed, we also support the bill.”

Cronk said GetEQUAL neither supports nor opposes the bill and believes “any time that that pro-LGBT legislation comes up in Congress, we want that legislation to move forward.”

“Our organizers didn’t feel good about organizing in support of the bill because there wasn’t that change to the religious exemption and because the grassroots network we work with feel the impact of that everyday,” Cronk said. “They work in hospitals in the closet, or they teach at schools where they’re in the closet, and they have a really clear sense about who would be left behind by this legislation, and didn’t feel that was in line with our vision.”

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

6 Comments
  • Everyone who supports equal rights should be calling their senators at 202-224-3121 and urging them to PASS ENDA.

    How can GetEQUAL support protecting Americans from job discrimination based on sexual orientation and gender identity — while NOT supporting the first bill in Congress that can do just that for millions of Americans? If this group had been around when the 1964 Civil Rights Act was voted on, it sounds like they wouldn't have supported it either because it left some of us behind. Among other categories, pregnancy, age, and disability all got added years later. We’re STILL waiting for sexual orientation and gender identity. Does that make the 1964 Civil Rights Act a bad law? No, it’s a great law; the only and best law that could have passed at the time – and it laid the groundwork for much of the essential civil rights progress that continues to flow from it. Newsflash: Every law leaves somebody behind. Nothing happens all at once.

    It also is especially important that we advance both equal rights AND religious liberty. Those religious liberty provisions protect our community as well, and are true to our nation's values in addition to being essential to getting ENDA passed. ENDA strikes the right balance, and at long last is passable with a solid and appropriate religious exemption.

    The Senate is about to vote on ENDA for the first time in 17 years, and GetEQUAL would rather argue with our allies than support and advance the bill itself? How equal does that actually get us? They should be engaging their members to urge Senate passage of the bill. This vote can be historic, and can lead to progress in the House as well. This is no time for ivory-tower activism with everyone falling all over themselves to prove their theoretical ideological purity. This is the real world. People's livelihoods are at stake. The fact that not every law covers every single instance of everything is NOT a rationale for having NO law. Remember that "good is the new perfect," equal rights and religious liberty do go together, and it's long past time we got this done. So please, call your senators at 202-224-3121 today and urge them to pass ENDA now!

  • HRC once again willing to leave people behind. Even though their own polling shows almost 70% of Americans support narrowing the religious exemptions. HRC's dedication to passing an inclusive bill is once again called into question. Who else are they willing to throw under the bus. The hypocrisy of advocating on Tippi's behalf while promoting a bill that does nothing for her is absurd. The Civil Rights Act passed with narrow religious exemptions. A veteran and service member employment anti-discrimination bill with no religious exemptions has the support of several Republicans to include tea party ohio Congressman Jim Renacci.

  • The exemptions allowed in the Civil Rights Act are sufficient for every other group. Why should we be subject to additional exemptions? Why should we accept being treated badly when others are not?

    It is not "ivory tower" (which is the wrong metaphor anyway) to expect EQUALITY and to not accept second-class status.

  • Morgan GetEqual Bonney

    GetEQUAL does support the bill, but will not settle for less than we the people deserve. The group is urging and pushing those who are in support to help make the bill the best it can be making sure everyone is protected. As the bill is written currently, it will still be legal to fire someone based upon SOGI.

  • The religious exemption covers a tiny fraction of the workforce. Yet the small business exemption let abut 25% of companies uncovered by ENDA. Those picking on the minor exemption and silent on the larger are just grinding some personal axe.

  • There comes a point where it is no longer a matter of mere :rights" but expansions of power, and power corrupts. This movement continues to prove its fascist intolerance of even the most civil criticism and its intolerance of a no more than merely civil desire to simply not participate in your private bedroom matters.

    "If you want to know who rules you with an iron fist find out who you are not allowed to criticize" – Voltaire

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