After prominent LGBT advocacy groups withdrew their support for the Employment Non-Discrimination Act this week over its religious exemption, a number of other organizations and lawmakers who continue to support the bill are reasserting its potential to extend protections to LGBT workers.
During her weekly news conference, House Minority Leader Nancy Pelosi (D-Calif.) suggested she was still on board with ENDA by insisting the Senate-passed version is better than nothing.
“When you’re an advocate, 100 percent is your goal,” Pelosi said. “When you have to make a vote, the bill that we have is one that passed the Senate in a bipartisan way. I think that has a big value, and if we were able to pass it, send it to the president and get it on his desk.”
Pelosi, considered a strong supporter of the LGBT community, wouldn’t explicitly say whether she would vote for ENDA, despite repeated questioning from the Washington Blade and the Huffington Post, but maintained she’s “in consultation” with members and LGBT advocates and hinted at a plan that she wouldn’t convey at this time.
“Do we want to give up on this?” Pelosi said. “Because we have some Republican co-sponsors on the bill, overwhelming sponsorship among the House Democrats. We have an opportunity there. Or we can go to a place where we might not have Republican co-sponsors without the clause.”
On Tuesday, five major legal groups that work on LGBT advocacy issues and the LGBT labor group Pride at Work announced they were withdrawing support for ENDA over the religious exemption as the National Gay & Lesbian Task Force Action Fund announced it now opposes the bill.
The Human Rights Campaign, the National Center for Transgender Equality and Freedom to Work still support the version pending before Congress, but said they welcome a narrower religious exemption.
But the withdrawal of support complicated the chances of passing a version of ENDA in the Republican-controlled House, which was already an uphill task. House Speaker John Boehner (R-Ohio) has repeatedly said he opposes the legislation.
Throughout her remarks, Pelosi acknowledged her objections to the religious exemption, calling it a “conscience clause” because she doesn’t know what to call language with which she doesn’t agree.
Like many others who’ve now expressed concerns about ENDA, Pelosi said the U.S. Supreme Court ruling in the Hobby Lobby case, which allows closely held corporations to deny contraception coverage for religious reasons, had an impact on her thinking on ENDA.
“Before the court decision, I would say, I would have voted for the bill as I celebrated its passage in the United States Senate because it’s a giant step forward,” Pelosi said. “Again, not what we want, but what we could get passed, and that’s what legislation is.”
Pelosi also insisted that votes in the House Democratic caucus for ENDA without a religious exemption are present, so the only question is whether Republicans and the Senate can pass a revised bill.
“Our Democratic votes are solid with or without the clause, so I just want to get Republican votes right now, or else win the election and then have a bill, but you still have to deal with 60 votes in the Senate and that’s hard for people to understand, but that is the case,” Pelosi said.
Speaking about the religious exemption, Pelosi told the Blade she has a plan, but wasn’t in a position to convey at the moment any information about it.
“I have a plan,” Pelosi said. “I’m not going to tell you right now what it is, because this is really important to me.”
According to The Huffington Post, House Democrats have begun talks about reintroducing ENDA with a narrower religious exemption to appease LGBT groups that bolted from the bill. Sources have told the Blade about the possibility of attaching ENDA to an appropriations bill in the Senate for the House to pass as a larger package.
Tico Almeida, president of Freedom to Work, praised Pelosi’s leadership on ENDA, saying he welcomes plans to push forward on LGBT protections.
“Leader Nancy Pelosi is an outstanding champion for LGBT Americans and it’s great that she and our allies in the House are creating plans to continue the fight against those narrow-minded politicians who are blocking LGBT workplace protections from getting a simple up or down vote in Congress,” Almeida said. “We want those plans to include a narrower religious exemption with absolutely no Hobby Lobby loopholes, and we want to keep pushing forward for a long overdue vote on LGBT workplace protections.”
Other supporters of ENDA are reasserting the importance of the legislation, despite the withdrawal of support from LGBT advocates.
In a statement to the Blade, Sen. Tammy Baldwin (D-Wis.), the only openly LGBT member of the U.S. Senate, emphatically said she remains a supporter of ENDA and will continue to fight for its passage.
“I’ve been fighting this fight long enough to know that no bill is perfect, but we found common ground to prohibit workplace discrimination against LGBT Americans simply because of who they are or who they love,” Baldwin said. “Every American deserves the freedom to work free of discrimination and I will continue to call on the House to put progress ahead of politics and give the Senate-passed ENDA bill an up or down vote because this legislation provides workplace protections that millions of LGBT people deserve and need today.”
Spokespersons for Republicans Mark Kirk (Ill.) and Rob Portman (Ohio), who voted for the bill in the Senate, also maintained they continue to support the bill. The office of Sen. Susan Collins (R-Maine) didn’t respond to a request to comment.
“Sen. Kirk has consistently been a vocal supporter of the LGBT community and will continue to back ENDA and the protections it affords countless Americans,” said Danielle Varallo, a Kirk spokesperson.
On Wednesday, the Third Way, a centrist group that supports the advancement of LGBT rights, delivered an advance copy of a memo to the Blade titled, “Don’t Abandon ENDA,” which urges advocates not to reject the legislation over the religious exemption. It’s written by Lanae Erickson Hatalsky, Third Way’s director of social policy and politics; and Sarah Trumble, Third Way’s policy counsel.
“While it is understandable that many Americans — gay and straight — feel worried about the right wing’s ever-expanding claims to opt out of laws based on religious liberty, ENDA’s religious exemption is not the problem, and abandoning ENDA in order to protest it is not the solution,” the memo states.
According to the memo, whether or not ENDA contains a religious exemption, religious organizations could still discriminate against LGBT workers if the organization deems they violated a tenet of the organization’s religion because Title VII of the Civil Rights Act of 1964 allows religious organizations to discriminate on the basis of religion. That means a religious organization could terminate for religious reasons a male employee if he decided to date or marry another man, the memo says.
“It is unlikely a male gay janitor who worked for a religious organization would feel better if his employers fired him for deciding to openly date or marry another man than if they fired him for being gay,” the memo says. “While that difference matters, it is not enough to throw the ENDA baby out with the bathwater.”
Meanwhile, Pelosi said the continuing debate over whether there should be LGBT non-discrimination protections enshrined into law is baffling to her.
“I can’t even believe that it should even be necessary to still need such a bill, but it is, and in states where it exists, it has not had any of the consequences that Speaker Boehner has said — job killer, whatever, this, that and the other thing,” Pelosi said. “No. It has worked very well. We want it be a national law, and so we’re going to carefully review what the options are.”