The ENDA bill--the Employment Non-Discrimination Act--passed by the Senate on Nov. 7 actually better protects religious freedom than when it was introduced--despite strong efforts for several months to drastically weaken its religious freedom protections. Without objection--indeed, with the support of the bill's sponsors and Senate leader Harry Reid (D-NV)--the Portman amendment (Sen. Rob Portman, R-OH) to strengthen religious protections was added to the bill.
The bill, S. 815, would prohibit employment discrimination on the bases of sexual orientation and gender identity. ENDA bills have been introduced in Congress since the mid-1990s. This is the first time the Senate has passed such a bill. The House adopted an ENDA bill in 2007, but that bill did not include transgender protection. It is unlikely that the current House will act on ENDA at all. (Twenty-one states plus the District of Columbia ban employment discrimination based on sexual orientation; 17 states and DC ban both sexual-orientation and gender identity job discrimination. Many large cities and large companies also have similar prohibitions.)
Since the 2007 House bill, ENDA bills have included a religious organization exemption: an organization able under Title VII of the 1964 Civil Rights Act to consider religion when hiring is not subject to ENDA's prohibitions. That same exemption is in the bill the Senate adopted last week.
It is a significant exemption, but an inadequate one. For one thing, it isn't absolutely clear which organizations are exempted: What makes an organization "religious enough" to be exempted? Will religious businesses (e.g., a bookstore or day care center or broadcaster) be exempt? In the context of the HHS contraceptives mandate, the administration insists that businesses in principle are not religious organizations (on the other hand, most courts so far, when deciding on preliminary injunctions, have gone the other way). In any case, a religious organization exemption does not obviously protect religious individuals, nor non-religious organizations and individuals that nevertheless have moral concerns about sexual conduct.
In a Senate determined to adopt ENDA, there was no sympathy to address these issues (an amendment proposed by Sen. Toomey (R-PA) to clarify the scope of the religious organization exemption was roundly defeated). But the Portman amendment did make highly significant changes.
Portman's amendment made two important changes:
(1) It added non-retaliation language. In the bill as adopted, a religious organization that utilizes its exemption to decline to hire a person because of their LGBT conduct cannot be retaliated against by federal officials or by a state or local agency that receives federal dollars. The exempt organization cannot be stripped of its tax exemption, a government grant or contract, a license or accreditation or other government benefit. As one Senator said during the debate: this change ensures that the government's right hand doesn't remove from a religious organization what its left hand gave to it.
(2) It added language stressing that Congress intends to protect religious freedom at the same time as it seeks to advance LGBT rights. In other words, in protecting gay rights, Congress is not intending to create a compelling government interest that should trump religious freedom the way the government's interest in ending racism generally trumps the government's duty to protect the freedom of religious organizations to conduct their affairs as their faith dictates.
Activists (the ACLU, the Secular Coalition, and others) had been pressing the Senate to treat sexual orientation and gender identity the same as race, age, and sex in the employment context, drastically narrowing the ENDA bill's religious organization exemption. Instead, via the Portman amendment, the Senate strengthened the religious freedom protections. The amendment removed from the bill the assertion that LGBT discrimination is "unconstitutional"--no court in fact has ruled that. And the amendment added a new purpose statement: the ENDA bill seeks not only to prohibit wrongful LGBT job discrimination but also to uphold religious freedom. It has two distinct purposes, so that the action in favor of LGBT employees cannot be understood to mean a desire to undermine religious organizations.
These language changes, as well as the addition of the non-retaliation provision, and the religious organization exemption itself, all make it clear that, at least for the Senate, LGBT rights are not the same as race, sex, and national origin discrimination claims. That's important not only for religious employers exempt from ENDA but also for other organizations that might want to make a religious claim that they should be exempt from ENDA for religious reasons, and for persons who believe their religious freedom is wrongly burdened by ENDA's requirements.
Supporters of religious freedom--whatever their views on ENDA itself--owe thanks to Sen. Portman and to the Senators who co-sponsored his amendment: Kelly Ayotte (R-NH), Dean Heller (R-NV), Orrin Hatch (R-UT), and John McCain (R-AZ). Thanks are owed as well to Sen. Susan Collins (R-ME) who shepherded the amendment into the ENDA bill.
See also:
A strong LGBT attack on the religious exemption, here.
Testimony from National Religious Broadcasters about the inadequacy of the religious freedom protections, here.
Southern Baptist statement about ENDA's inadequacies, here.
Catholic Church statement about ENDA's inadequacies, here.
Sen. Harry Reid's promise to weaken ENDA's religious freedom protections, here.
