The nation’s largest LGBT group in years past has supported federal LGBT non-discrimination protections with a religious carve-out broader than language found in existing civil rights law, but a top staffer for the group announced Monday that is no longer the case.
Sarah Warbelow, legal director for the Human Rights Campaign, made the remarks during a panel discussion at the Brookings Institute on the recently passed LGBT non-discrimination law in Utah. The event was titled, “Gays, Mormons, and the Constitution: Are there win-win answers for LGBT rights and religious conscience?”
Warbelow said HRC wants an upcoming comprehensive non-discrimination bill in Congress to have a religious exemption “treating LGBT people the same as we treat all other protected classes” under Title VII of the Civil Rights Act of 1964.
“There are existing carve-outs for religion in Title VII,” Warbelow said. “In addition, the Supreme Court has issued a number of decisions regarding ministerial employees, and for those who are not familiar with employment case law, ministerial employees don’t just include the priest or the minister, that has been interpreted fairly largely to include professors, lay teachers, cemetery workers, so it is a very expansive view of a minister.”
An upcoming bill affording non-discrimination protections on the basis of sexual orientation and gender identity in areas of employment, housing, federal programs, credit, education and public accommodation is planned for introduction this spring by Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-Ore.).
Warbelow said the bill introduction will be at a time “when it is ripe to begin a new conversation,” and although no language for the bill yet exists, the concept is out there.
Asked by the Washington Blade to clarify whether those remarks mean the Human Rights Campaign would find unacceptable a bill with a religious exemption broader than existing civil rights law at the federal level, Warbelow affirmed that is the case, saying, “Yes. LGBT people should be treated the same as all other protected classes.”
“We are certainly open to have conversations about potentially codifying existing Supreme Court law because it applies to all protected classes, but, you know, look, the Human Rights Campaign and most other LGBT organizations never liked the religious exemption that was in the Employment Non-Discrimination Act,” Warbelow continued when asked if her organization would oppose a bill with such a carve-out.
Warbelow’s words stand in contrast to HRC’s continued support for a version of ENDA the Senate passed in 2013 that contained a religious exemption broader than what exists for other groups under Title VII and would allow religious organizations to discriminate against LGBT people in non-ministerial positions. HRC was one of the few LGBT groups to continue to back that version of ENDA, even after others, like the National LGBTQ Task Force and the American Civil Liberties Union, dropped support for the bill.
The clarity that Warbelow provided on her organization’s position on the comprehensive bill’s religious exemption also differs from what HRC President Chad Griffin said last year when Merkley announced plans to introduce the bill. During an event at the Center for American Progress, Griffin said his organization wants to see a religious exemption along the lines of Title VII, but dodged in response to the Washington Blade’s questions on whether HRC would support a bill with a broader religious carve-out.
Addressing HRC’s previous support for ENDA despite its broad religious exemption, Warbelow explained the legislation had value in years past because LGBT people were in a different situation.
“It was something that groups decided to do over 20 years ago when what equality looked like for LGBT people was very different, what our lives looked like was different,” Warbelow said. “The LGBT community is in a very different position today; we don’t want to have protections that other groups do not have. We’re not looking for special treatment, but we do want to make sure that the LGBT community is on an equal footing with everyone else.”
Asked by panel moderator Jonathan Rauch, a senior fellow at the Brookings Institute whether the comprehensive bill would be dead-on-arrival in the Republican Congress, Warbelow said “it’s not going to happen this year, it’s not going to happen next year,” but increasingly positive attitudes toward LGBT people are good for prospects of the bill.
Nathan Diament, another panel member and executive director of the Orthodox Union Advocacy Center, questioned why LGBT advocates don’t simply seek to amend Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity to achieve protections.
“The advantage of doing that, it seems to me, is by doing it that way, you don’t have to write a whole new section about religious accommodations, exemptions, and so on and so forth because it’s all baked into the cake already,” Diament said.
Warbelow’s vision for the religious exemption in the upcoming comprehensive bill comes amid criticism of the organization for endorsing the Utah non-discrimination law, which has a religious exemption along the lines of the old version of ENDA and would continue to allow anti-LGBT discrimination in public accommodations. It should be noted the new Utah law is consistent with non-discrimination protections for other groups under state law.
The New York-based grassroots group Queer Nation, which opposes the Utah law, issued a statement on Monday criticizing HRC for partnering in writing the bill with Robin Fretwell Wilson, a University of Illinois law professor, citing her ties to anti-LGBT organizations.
Wilson, who was among the participants on the Brookings Institute panel, talked about fear in the religious community about the advancement of marriage equality.
“In Utah, people are in mourning about the fact that they’ve lost on the marriage question,” Wilson said. “And now they are trying to do something that they believe is fundamentally right and decent for the LGBT community, but they also are concerned to preserve what they believe is the uniquely religious character of marriage.”
Warbelow said criticism in the LGBT community over the Utah law is largely “due to a misunderstanding about what existing Utah law does. I think it really very much is a fundamental misunderstanding.”
“This bill is an appropriate and a solid piece of legislation for the state of Utah,” Warbelow said. “I can’t emphasize that enough. It is not a model of the rest of the country; it is not a model for the federal government.”
But one person who found the vision for a federal non-discrimination bill with a narrow religious exemption troubling was Gregory Angelo, executive director of Log Cabin Republicans. Attending the panel as an audience member, Angelo was the person who initially asked about the Utah law, saying it could be a “potential for a template across the nation.” Like HRC, his organization was among those that continued to support ENDA after other groups withdrew from the bill.
Following the panel, Angelo told the Washington Blade the drafting of the legislation is being handled by Democrats and Republican allies to the LGBT community aren’t at the table.
“I think it is a mistake to be focusing on drafting this legislation exclusively with Democrats in the House and Democrats in the Senate,” Angelo said. “The best way to get this passed, understanding what the current political landscape is, is to have either Republicans introducing this civil rights legislation or having Democrats and Republicans introduce it together. Already, I think we might be in for a mistake right out of the gate if this is bill is introduced exclusively by Democrats because it politicizes this issue, and it shouldn’t be politicized.”
In the previous Congress, Sens. Susan Collins (R-Maine) and Mark Kirk (R-Ill.) were original co-sponsors of ENDA and Rep. Ileana Ros-Lehtinen (R-Fla.) was an original co-sponsor in the House. Angelo dodged when asked why they were excluded, emphasizing direct engagement with Republicans is necessary for LGBT rights legislation.
With regard to the religious exemption, Angelo said non-discrimination protections at the federal level need to have a “reasonable religious accommodation” to make it worthwhile for both major parties to have an interest.
“Not knowing what types of exemptions are being drafted right now, I can’t comment specifically on that, but I do worry that an exceedingly narrow religious exemption could prevent any sort of dialogue on this legislation to begin with.”
Asked whether an “exceedingly narrow religious exemption” would be one along the lines of Title VII, Angelo replied his organization hasn’t taken a position, adding, “I hesitate to say that an exclusively ministerial exemption would be enough to get Republicans on board at this juncture.”
Alex MacFarlane, a Cicilline spokesperson, had little to say about the comprehensive legislation in response to concerns about the measure.
“The bill is still under development and we will not be commenting on any aspect of it for the time being,” MacFarlane said. “I can certainly keep you posted if that changes.”