July 8, 2014 | by Chris Johnson
Nadler ‘concerned,’ wants to narrow ENDA’s religious exemption
Jerrold Nadler, New York, United States House of Representatives, U.S. Congress, Democratic Party, gay news, Washington Blade

Rep. Jerrold Nadler (D-N.Y.) is unsure how he’d vote on ENDA because of the religious exemption (Washington Blade file photo by Michael Key).

Rep. Jerrold Nadler (D-N.Y.) is concerned about the religious exemption in the Employment Non-Discrimination Act, indicating that he’s unsure whether he’d vote for the bill if it reached the House floor.

Nadler articulated his objections Tuesday in a statement to the Washington Blade as concerns over ENDA’s religious exemption continue to grow. On the same day, the National Gay & Lesbian Task Force Action Fund announced it now opposes the current version of the legislation before Congress, followed by other national groups who announced they were withdrawing support from the bill.

In his statement, Nadler said the religious exemption is “overbroad” and pledged to work to amend the language within the legislation.

“I am very concerned about the religious exemption in the ENDA bill that passed the Senate,” Nadler said. “I think it is overbroad and I will of course work hard with my colleagues to narrow it appropriately.”

Nadler, who’s the first member of the U.S. House to voice objections to ENDA’s religious exemption, based his concerns on the U.S. Supreme Court decision in the Hobby Lobby case, which determined the Obama administration cannot compel closely held corporations to provide contraception coverage to employees.

“Particularly in light of the recent Hobby Lobby decision, we must be more careful than ever to ensure that religious liberty, a cherished American value intended to shield individuals from government interference, is not wielded as a sword against employees who may not share their employers’ religious beliefs,” Nadler said.

Even though Nadler is among the growing bipartisan number of co-sponsors of ENDA, his spokesperson, Aaron Keyak, said he can’t affirm at this time whether his boss would vote for the bill on the House floor.

“I can’t say today how Rep. Nadler will vote because we don’t know what exactly the final bill will say once it’s through committee,” Keyak said.

Shannon Minter, legal director for the National Center for Lesbian Rights, praised Nadler for joining the organization and other LGBT groups in articulating opposition to the religious exemption.

“We are grateful to Mr. Nadler for speaking out about this critical issue and for his commitment to narrow the exemption,” Minter said. “Every day, it is more apparent that the current exemption is dangerous, discriminatory and has no place in a civil rights bill.”

Nadler has a history being the face for an uncompromised version of ENDA that would provide extensive protections for the LGBT community. In 2007, Nadler was among the around two-dozen Democrats to vote “no” on a version of ENDA that came to the House floor without transgender protections.

Also at the time, the New York lawmaker was among 402 members of the U.S. House to vote for a more expansive religious exemption when it came to the House floor as an amendment to the version of ENDA. However, the language wasn’t quite as expansive as what’s found in the pending version of ENDA, which further insulates religious organizations.

Some other Democrats still in Congress who voted against ENDA in 2007 don’t share the same view as Nadler this time around.

One of them is Rep. Mike Michaud (D-Maine), who voted against ENDA at the time at the behest of Equality Maine because the legislation lacked transgender protections. He’s currently running in Maine’s 2014 gubernatorial election and may become the first openly gay person elected governor in the United States.

Dan Rafter, a Michaud spokesperson, said on Tuesday the Maine lawmaker, who still retains his seat in the U.S. House, “continues to support ENDA.”

Passage of ENDA, which would prohibit employers from discriminating on the basis of sexual orientation and gender identity, has been a high priority among LGBT advocates for many years. However, the bill’s religious exemption — which is broader than the religious exemption under Title VII for the Civil Rights Act of 1964 for characteristics such as race, gender, religion and national origin — has faced criticism from LGBT advocates who say it should be narrowed.

Even if ENDA were to become law, businesses with religious affiliations, such as Catholic churches and schools, would be able to fire not just a priest, but a janitor on the basis of anti-LGBT bias.

Numerous national LGBT groups — GetEQUAL, the National Center for Lesbian Rights and the Transgender Law Center — have said they won’t support ENDA because of its religious exemption, while other groups such as the American Civil Liberties Union and Lambda Legal have voiced objections to the language. State LGBT groups have split views on ENDA — although four of them — FreedomOhio, Equality New Mexico, the Transgender Education Network of Texas and Wyoming Equality — say they don’t back the current version of ENDA.

Other groups, such as the Human Rights Campaign, Freedom to Work, the National Center for Transgender Equality, and Log Cabin Republicans, continue to support ENDA and have been lobbying in conjunction with the $2.2 million effort headed by the Americans for Workplace Opportunity campaign to pass the bill.

Rea Carey, executive director of the Task Force, which had previously supported the version of ENDA pending before Congress, switched views on Tuesday and announced opposition to the current legislation, saying the Hobby Lobby decision compels the organization to reconsider its views.

“As one of the lead advocates on this bill for 20 years, we do not take this move lightly but we do take it unequivocally – we now oppose this version of ENDA because of its too-broad religious exemption,” Carey said. “We cannot be complicit in writing such exemptions into federal law.”

The Task Force’s new vow to “oppose” ENDA places the organization in a position that is furthest against the legislation among LGBT groups, which have only gone so far as to say they no longer support ENDA. That view also aligns the organization’s position with its views on ENDA in 2007, when the group wouldn’t support the bill because the transgender protections were dropped.

Following this announcement, other groups who previously articulated concerns about ENDA’s religious exemption — the American Civil Liberties Union, Lambda Legal and Gay & Lesbian Advocates & Defenders — joined NCLR and the Transgender Law Center in a joint statement to declare they’re withdrawing support from the bill.

“Given the types of workplace discrimination we see increasingly against LGBT people, together with the calls for greater permission to discriminate on religious grounds that followed immediately upon the Supreme Court’s decision last week in Burwell v. Hobby Lobby, it has become clear that the inclusion of this provision is no longer tenable,” the statement says. “It would prevent ENDA from providing protections that LGBT people desperately need and would make very bad law with potential further negative effects.  Therefore, we are announcing our withdrawal of support for the current version of ENDA.”

In response to concerns from Nadler and others on whether the nation’s largest LGBT group will continue to support ENDA, Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization continues to back the bill.

“HRC supports ENDA because it will provide essential workplace protections to millions of LGBT people,” Sainz said.

Groups that maintain support for ENDA continue their work in the U.S. House to lobby for additional support for the bill. The legislation passed last year in the Senate by a 64-32 vote, so the only thing keeping ENDA from President Obama’s desk is a successful vote in House.

Mara Keisling, executive director of the National Center for Transgender Equality, maintained her organization is working to advance LGBT protections when asked if objections to the religious exemption have interfered with lobbying efforts.

“We’re focused on trying to move the Senate bill through the House,” Keisling said. “Like a majority of members of Congress, and frankly a majority of Americans, we support protecting the millions of LGBT people across the country who need explicit, clear remedies against job discrimination.”

From July 14 to July 15, NCTE is set to organize a transgender lobby day on Capitol Hill to encourage passage of ENDA. A website promoting the event says as of Tuesday it’s a joint project of NCTE, the Trans People of Color Coalition, Trans Latin@ Coalition, PFLAG National, Black Transmen, Inc., Black Transwomen, Inc. and — even though it now opposes ENDA — the Task Force.

Christian Berle, legislative director for Freedom to Work, said the controversy hasn’t reached the undecided Democrats or Republicans who have yet to co-sponsor the bill.

“In all of our lobby visits with the eight Democratic holdouts and every single House Republican office, no member of Congress or staffer has ever raised the ENDA critiques that some advocates have been publishing on blogs recently,” Berle said.

Although supporters of ENDA claim sufficient support for the legislation exists in the House for passage, U.S. House Speaker John Boehner (R-Ohio) has said he opposes the legislation when asked if he’ll allow a vote on the bill.

Gregory Angelo, executive director of Log Cabin Republicans, said prior to the Task Force announcement he was unaware that certain groups have decided to withdraw support from ENDA, maintaining the religious exemption has enabled Republican support for the bill.

“No one I’ve spoken with has expressed misgivings about the religious exemption — to the contrary, the religious exemption has been key to gaining Republican co-sponsorship of the bill,” Angelo said. “All of Log Cabin Republicans’ lobbying on ENDA has been with GOP members, but I am unaware of any Democratic co-sponsors who have withdrawn their names in protest. Politics is about the possible, and right now what’s possible is passing ENDA with its present exemption.”

The current version of ENDA has eight Republican co-sponsors in the U.S. House: Reps. Ileana Ros-Lehtinen (Fla.); Richard Hanna (N.Y.); Charles Dent (Pa.); Jon Runyan (N.J.); Chris Gibson (N.Y.); Michael Grimm (N.Y.)., Mike Coffman (Colo.) and Rep. Frank LoBiondo (R-N.J.).

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

4 Comments
  • First all you bitches oppose ENDA for the Transgender exclusion of the bill now it’s because of the religious exemptions. It seems our own community is more a hindrance to passing this bill than our own enemies!

    This all our nothing thinking has kept us from achieving our goals for decades. What is the extent of the religious exemption? Does it mean that Liberty University, Concerned Women for America or The Family Research Council don’t have to hire us because they are specifically religious organizations or does it mean any secular business claiming faith can discriminate against us? If it’s simply religious organizations, who cares if we can work in all secular businesses? Why would you want to work for people who hate you?

    But if it’s anyone than claims faith as an excuse to discriminate in any business then yes, it’s unacceptable.

    • Everyone should support passage of ENDA while Obama is in office. We have no guarantee that a future President would support let alone sign the legislation into law assuming it can get through Congress in the first place regardless of a more narrow religious exemption.

      Why can’t everyone support the version passed by the Senate and then if you get approval in the House later mark up the bill to narrow the religious exemptions? You may lose the support you need to get it passed in both chambers only delaying the bill’s passage indefinitely.

      Face it, the chance to pass ENDA was when Pelosi was in charge of the House but her endless excuses blew it. Harry Reid wouldn’t act either. Now you have GLBT people trying to derail the bill yet again when it’s bogged down in the House by Boehner.

      You people are so ridiculously shortsighted with we get everything or we don’t want it mentality. You’re as bad as the religious conservatives sometimes.

      ENDA has been hosted up for over thirty years dammit and we’ve never been closer to passage. Why screw us up for possibly another generation? At this rate, I will have spent my entire working life and likely retire in another two decades without seeing ENDA become law.

  • “Add the Four Words!”

    …meaning, add “Sexual Orientation” and “Gender Identity” to the EXISTING Civil Rights Act. That’s all we need: no less, and NO MORE! (no more exemptions)

  • A bad, unconstitutional ENDA law would be far worse for all Americans than none at all. Freedom OF religion includes freedom FROM religion.
     
    Kudos to Jerry Nadler for making his concerns about the weakened ENDA known. That goes for the half dozen or so LGBT groups who have just announced their opposition to a mistaken, loophole-driven ENDA. However, Nadler and LGBT activists should refocus on NEW legislative LGBT protections, as we all should.
     
    It is time that we recognize that ENDA has been made obsolete by other forces. ENDA’s obsolescence is due to changes in most Americans’ view of their fellow LGBT citizens. And that has happened rapidly, surprisingly across political, religious and geographic divides of many decades.
     
    The despicable Hobby Lobby decision by SCOTUS is a factor, as well– though an outlier I think, to the embracing of traditional American fairness for LGBTs and their basic rights.
     
    Accordingly, we are now asking far too little to affirm and secure the nondiscrimination rights of LGBT Americans that other American minorities and women have enjoyed for as much as FIFTY years under Title VII of the 1964 Civil Rights Act.
     
    Now is the time to scrap ENDA legislation altogether, and to replace it with full, specific addition of LGBTs as a protected class to Title VII of the 1964 Civil Rights Act.
     
    Title VII inclusion would be stronger and more effective in securing LGBT employment nondiscrimination rights than the current ENDA version, while providing other important nondiscrimination protections for LGBTs as well.
     
    A federal contractor ENDA EO is still as needed as it ever was– and without ANY religious exemptions. The president should fulfill his multiple promises on that federal contractor ENDA EO promptly. Yesterday wouldn’t be too soon for him to do that.
     
    But let’s scrap ENDA– the sooner, the better. Let’s not make an historic mistake of enormous proportions. Title VII is the best legislative path forward to secure LGBT protections under federal law.

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