A deep rift has opened up within the LGBT community over the Employment Non-Discrimination Act as several groups this week announced they were dropping support for the bill, while others continue to lobby for its passage.
The split makes it increasingly difficult — perhaps impossible — to see how ENDA has a chance to pass in a chamber of Congress where Republican control already made efforts to advance the bill a long shot.
The issue is the religious exemption in ENDA, which would allow religious organizations to continue discriminating against or firing LGBT employees in non-ministerial positions.
The language — adopted in the Senate version to ensure the support of the 10 Republicans who voted for the bill (as well as some conservative Democrats) — is broader than the religious exemption under Title VII of the Civil Rights Act of 1964, which protects workers on the basis of race, gender, religion and national origin.
Concerns about the religious exemption aren’t new, but they intensified following the rejection of the “turn away the gay” bill in Arizona that would have allowed businesses to discriminate against LGBT people for religious reasons. Many national LGBT groups faced criticism from grassroots activists for continuing to support the current version of ENDA.
On Tuesday, the National Gay & Lesbian Task Force Action Fund announced it now “opposes” ENDA because of the religious exemption.
Rea Carey, executive director of the National Gay & Lesbian Task Force, drew heavily on the U.S. Supreme Court’s decision in the Hobby Lobby case in explaining her decision to come out against the current version of ENDA, saying religious-based discrimination has to end.
“The campaign to create broad religious exemptions for employment protections repeats a pattern we’ve seen before in methodically undermining voting rights, women’s access to reproductive health and affirmative action,” Carey said. “It is time for fair-minded people to block this momentum, rather than help speed it into law. We need new federal non-discrimination legislation that contains a reasonable religious accommodation.”
A spokesperson for the Task Force, Mark Daley, followed up by saying he made no assessment prior to the announcement that ENDA couldn’t pass the U.S. House. In the event that a version of ENDA with a broad religious exemption reaches President Obama’s desk, the Task Force would call on the president to veto the legislation, Daley said.
The Task Force is also set to withdraw from the steering committee of Americans for Workplace Opportunity, a $2.2 million campaign dedicated to passing ENDA, Daley said.
In a separate statement, five legal groups that advocate on behalf of the LGBT community — the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, the Transgender Law Center, the National Center for Lesbian Rights and Lambda Legal — affirmed they are withdrawing support from ENDA. That announcement was followed by a third statement from the LGBT labor group Pride at Work, which also announced it was withdrawing support for the bill.
Politicians are beginning to reconsider as well. In a statement to the Blade, Rep. Jerrold Nadler (D-N.Y.), known for his progressive views, said he was “very concerned” about the religious exemption and pledged to work to narrow the language, indicating he was unsure at this time whether he could vote for the bill on the House floor.
Meanwhile, groups and lawmakers that continue to support ENDA have begun to weigh in.
“HRC supports ENDA because it will provide essential workplace protections to millions of LGBT people,” said Fred Sainz, vice president of communications for the Human Rights Campaign.
HRC President Chad Griffin, who has steadfastly refused Blade interview requests for months, penned an op-ed for Buzzfeed in which he called on “allies in Congress to improve this bill’s overly broad religious exemption.”
Mara Keisling, executive director of the National Center for Transgender Equality, said she continues to focus on her organization’s upcoming lobby day on Capitol Hill between July 14-15, when supporters of transgender rights are set to lobby for ENDA.
“I think we all understand that trans people urgently need job protections and that having 200 trans people and allies in D.C. next week educating Congress about that is a very good thing,” Keisling said. “Right now, what should be front and center are trans people and people who love them who are coming to D.C. to tell their stories about what they need to make a living and care for their families.”
Notably, the Task Force is among the six groups sponsoring the upcoming lobby day, even though it now opposes the legislation the event is designed to advance. Kylar Broadus, the Task Force’s counsel on civil rights, confirmed for the Blade the organization is still a “proud supporter” of the lobby day.
Freedom to Work didn’t respond to a request for comment. The White House also did not immediately respond to an inquiry.
Despite the blow the current version of ENDA received this week, no source was willing to declare the legislation dead for the remainder of this Congress. Those who support the legislation, including several who spoke on condition of anonymity, say they’ll continue to seek additional co-sponsors for the bill in hopes of passage after the Senate attaches the legislation to some kind of appropriations legislation.
A common theme among LGBT groups that withdrew support from ENDA was the impact of the Hobby Lobby decision on ENDA, which allowed closely held corporations to deny contraception coverage for religious reasons.
Rep. Jared Polis (D-Colo.), who’s gay and chief sponsor of ENDA, said in a statement to the Blade that he’s reviewing the implications of the court decision on ENDA in the aftermath of the controversy.
“I am consulting stakeholders and constitutional scholars on the implications of the Hobby Lobby decision on the current language of the Employment Non-Discrimination Act to ensure that LGBT workers will have the right to be judged solely on the quality of their work, not who they love or who they are,” Polis said.
Another possible explanation for why these groups withdrew support for ENDA at this time is the planned executive order from President Obama prohibiting anti-LGBT workplace discrimination among federal contractors.
A group of faith leaders, including Saddleback Church pastor Rick Warren, wrote to Obama last week asking him to include an exemption in the executive order for religious organizations that still want to receive federal contracts. One of their arguments for the inclusion of a religious exemption was the agreement on a broad religious exemption in the Senate-passed version of ENDA.
LGBT groups unanimously stated they want no religious exemption in the planned executive order, or one that’s no greater than the one found in Executive Order 11246, the directive that prohibits federal contractors from discriminating based on race, color, religion, sex or national origin. Continuing to support ENDA despite its religious exemption may have given the appearance of sending mixed messages.
By coming out against ENDA because of its religious exemption, LGBT groups can more firmly state without any nuance objections to the inclusion of an exemption within the executive order.
Ian Thompson, the ACLU’s legislative representative, said his organization’s position on the executive order has already been clear, but acknowledged withdrawing of support from ENDA aligns with its views on the directive.
“There were certain individuals and groups who pointed to the exemption in ENDA as somehow justifying an endorsement by President Obama of taxpayer-funded discrimination against LGBT people,” Thompson said. “What should be crystal clear today is that sweeping discrimination exemptions are neither acceptable in ENDA nor in the EO.”
Activists are that opposed to the religious exemption have called for a broader civil rights bill that would cover employment, housing and public accommodations in lieu of ENDA. The withdrawal of support for ENDA could be intended as a way to set the stage for a broader bill in a subsequent Congress.
Such a bill may come in the form of an amendment to the Civil Rights Act of 1964, although that would cover only employment and public accommodations because the Fair Housing Act of 1968 relates to housing.
Andrew Miller, a member of the New York-based grassroots group Queer Nation, articulated his opposition to ENDA’s religious exemption and hopes for a comprehensive bill in a statement to the Blade.
“ENDA is dangerous not only because of its religious exemption but because it signals that LGBT Americans do not deserve the same legal protections as our fellow Americans,” Miller said. “A comprehensive civil rights bill will guarantee LGBT people equality not just in employment but in housing, public accommodations, education, credit, and federal programs, just as the Civil Rights Act of 1964 does for people of color and women. Queer Nation will continue to educate the community and lobby for comprehensive civil rights legislation in Congress. Our community deserves—and expects—nothing less.”