So does the ENDA bill adopted last year by the Senate (and so did all previous ENDA bills considered by Congress, going back two decades).  The bill says that an organization free under federal law to consider religion in making employment decisions is exempt from the new non-discrimination requirements.  Under federal and state law, religious organizations may (with some exceptions) use religious criteria when selecting staff so that they can be sure that employees are compatible with and fully supportive of the organizations' faith-inspired and faith-shaped missions--just as political parties insist on ideological agreement, and environmental groups are free to reject applicants with no special care for the creation.  For the religious organizations, compatibility and support go beyond just assenting to the formal mission:  conduct in keeping with the religious principles of the organization is also important.  How can a theologically conservative Christian, Jewish, or Muslim group proclaim the importance of strong marriages shaped according to their respective religious traditions if they cannot legally exclude potential employees who live by other standards?  Exempting religious organizations from the new nondiscrimination requirements respects the religiously-based employee-conduct codes maintained by many religious organizations.

The Senate bill includes additional religious freedom protections, including a non-retaliation clause so that a religious organization that maintains a sexual-conduct code, for example, will not lose accreditation or a federal grant for that reason; and it includes language telling the courts that it is aim of Congress to protect the freedom of religious organizations at the same time as the lawmakers act to protect LGBT persons against job discrimination--that the courts shouldn't subordinate religious freedom to LGBT equality. 

The House has not taken up the Senate ENDA bill, and in the meantime, in reaction to the US Supreme Court's Hobby Lobby decision and the President's LGBT Executive Order--which does not have a religious organization exemption--many prominent LGBT and other organizations advocating for adoption of ENDA withdrew their support of the Senate bill and began demanding an ENDA bill without the religious organization exemption.  Without such an exemption, these groups apparently believe, religious organizations would be forced simply to disregard sexual orientation and gender identity when hiring, despite their legal right to consider religion in hiring.  If a job seeker shows up and claims to share the convictions of the group, these LGBT proponents apparently think the organization should be forced to just say Yes, even if the organization's interpretation of the religious beliefs is significantly different and even if the applicant's life style is flagrantly different than what the religion requires.  Without the organizational exemption, the two sides might end up in court to determine whether a decision against the applicant is a legitimate exercise of the religious staffing freedom or an illegal exercise of sexual-orientation discrimination.  But it is unlikely that courts will narrow the religious staffing freedom to a mere formal rule:  say you believe the same thing and the employer will have to ignore your actual convictions and your actual conduct.

An effort by the chief House sponsor of ENDA (Rep. Jared Polis, D-CO) to force consideration of the ENDA bill via discharge petition has gone nowhere.  Significantly, his effort is designed to get the House to adopt the Senate bill only after removing the religious organization exemption.

Thanks to the elections, the Congress that assembles in the new year will have a Republican Senate as well as House, and any push to adopt ENDA will have to start afresh.  It seems very unlikely that a Republican Congress will advance ENDA on its own.  Thus some ENDA advocates are searching for a way to get the House to adopt the Senate ENDA bill during the lame-duck session, before the current session of Congress comes to a close and the bill dies.

Their logic:  the dream of an ENDA bill that would subject religious organizations to the full force of the new nondiscrimination requirements is just that:  a dream.  The courts will always require some recognition of the right of religious employers to consider beliefs and conduct.  So it is foolish to wait for a future Democratic Congress that will produce a "pure" bill--one with no religious organization exemption.  Instead, those favoring LGBT job protections should act now, to get the House to adopt the Senate ENDA bill and send it on to the President.

That means either (1) persuade enough House members to sign a discharge petition putting up for a vote the Senate-passed ENDA (without removing the religious organization exemption); or (2) attaching the Senate ENDA language to the must-pass Defense appropriations bill.  Knowing that an ENDA bill is likely to pass in some future Congress, and that a future ENDA bill that is promoted in a Democrat-led House and Senate will likely have no strong protections for religious employers, enough House Republicans may join House Democrats to work to pass ENDA now--the Senate ENDA bill with its religious organization exemption.  The assumption is that the President would sign an ENDA bill sent to him by Congress, even though it includes the religious organization exemption that he would not add to his LGBT Executive Order for federal contractors.

Certainly, for religious employers that have an employee sexual-conduct standard as one aspect of their mission-protecting policy, it is important that any ENDA bill that becomes law have at least the religious freedom protections that have been written into the Senate ENDA bill.  A good ENDA bill would have additional language explicitly stating the congressional intent not to undermine the Religious Freedom Restoration Act or the free exercise guarantee of the First Amendment.

ENDA may not be the best way, in theory, to end wrongful LGBT job discrimination, but no other approach has won any significant favor.  A bill that includes strong protections for religious employers while prohibiting employers who have no religious standards from discrimination is an example of a way to respect religion even as government moves to expand other protections.

Blog interchange on the consequences for religious employers of the absence of a religious organization exemption in the LGBT Executive Order for federal contractors: posts by Carl Esbeck, Stanley Carlson-Thies, Martin Lederman, and Rose Saxe.