Don’t Abandon ENDA Over Its Religious Exemption

Over the past few months, a chorus has been growing in the LGBT advocacy community arguing that the religious exemption in the current version of the Employment Non-Discrimination Act (ENDA) is overly broad. Now, several advocacy organizations have announced that they are withdrawing their support from the bill because of their objections to this religious exemption. While their declaration has garnered a significant amount of media attention, the truth is that it does not represent a major policy schism, because the current exemption is not far from the legal structure that would be created without it. 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.

• This isn’t about Hobby Lobby. That case dealt with corporations who were claiming a right to religious liberty protection for their for-profit businesses. ENDA’s religious exemption has nothing to do with for-profit companies. In fact, during hearings on the bill, some witnesses argued that it should be extended to cover them, but those requests were rebuffed. Instead, ENDA’s exemption applies to non-profit religious organizations—which have long been given religious liberty protection under our laws. It is mirrored on the strong and tested religious exemption in the Civil Rights Act of 1964 and covers the same groups as that law: churches, synagogues, mosques, religious schools, religious associations, religious hospitals, and religious social services agencies whose “purpose and character are primarily religious”—not for-profit craft stores or other companies whose CEO might be a religious person.
• This isn’t about all employees of non-profit religious organizations. The Supreme Court has already recognized a First Amendment right of religious organizations to control their own affairs, called the “ministerial exemption.” This principle applies to employees “who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.” A religious organization can already hire or fire those employees for any reason—whether or not it is normally illegal—and use the First Amendment protection to defend against a lawsuit. While ENDA’s religious exemption applies to all employees of non-profit religious organizations, not just those covered by the First Amendment, removing it would not change these Constitutional protections.
• Religious organizations can already discriminate on the basis of religion. The Civil Rights Act of 1964 is clear that religious organizations can discriminate on the basis of religion for every single employee—not just those leaders and teachers covered by the ministerial exemption. For example, a Catholic organization could decide not to hire a janitor because that person was not Catholic, or because he or she did not follow the tenets of that religion. That means a religious organization could not, for example, refuse to hire a woman as a janitor (a non-ministerial role)—but they could argue they could fire a single, pregnant woman for behaving in a way that does not following their religious tenets (sex before marriage). Even if the religious exemption in ENDA were changed, unless we also changed Title VII, a non-profit religious organization could still argue they could fire a gay person for behaving in an overt way that violated that organization’s religious tenets, which for some religions could include being married to someone of the same gender.

Many who have objected to ENDA’s religious exemption have said that we should not create an exemption for discrimination on the basis of sexual orientation or gender identity which we would not allow for discrimination on the basis of race. That comparison may be instructive in some circumstances, so let’s play it out here. If a non-profit religious organization wanted to fire a ministerial employee for being African American, it could do so. The same is true for a gay or transgender employee even once ENDA is passed—whether or not it contains a religious exemption. For non-ministerial employees, that wouldn’t be true: a religious organization could not fire a janitor because of his or her race. But they could fire that employee if they can prove the person violated a tenet of the organization’s religion. Unfortunately, that case is exponentially easier to argue for a gay employee, or even one who is transgender (although perhaps somewhat less so in the latter instance since fewer religions explicitly address gender identity). While that difference matters, it is the only real difference between current law and the exemption in ENDA, and it is not enough to throw the ENDA baby out with the bathwater.