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Non-Discrimination Bill Gives the Religious the Right to Discriminate

Non-Discrimination Bill Gives the Religious the Right to Discriminate

The Employment Non-Discrimination Act (ENDA) was reintroduced into Congress on Thursday, but a number of pro LGBT legal groups are not happy with a particular aspect of the bill — its sweeping religious exemptions that they say give religiously-affiliated facilities a blank check to discriminate.

ENDA Introduced into the 113th Congress

ENDA was introduced on Thursday, April 25 as (H.R. 1155) in the House, where the bill enjoys bipartisan support from 159 co-sponsors (3 Republican and 159 Democratic legislators), and (S. 815) in the Senate, where the bill has five co-sponsors (two Republican and three Democratic legislators).

The bill was introduced in the House by Congressman Jared Polis (D-CO) and Congresswoman Ileana Ros-Lehtinen (R-FL), and in the Senate by Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI).

In both instances, the legislation has now been referred to committee.

What Exactly Would ENDA Do?

At the time of writing, the language of the bill is not yet available, but it is said to resemble previous incarnations very closely and the main purpose of the bill remains unchanged.

With that in mind, we know that the bill will prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation, gender identity and gender expression. Non-profit membership-only clubs, except labor unions, would be exempt, and the bill has always excluded the military, except in instances of civilian employment.

During the 111th Congress, the legislation had added to it a provision that stated ENDA could not be used to challenge the federal Defense of Marriage Act. The ACLU and Lambda Legal, who have both seen the text of the bill, confirm that this provision is no longer included. This is seen as a significant victory because it represents DOMA’s further decline.

While it is still not yet clear how the bill will square civil unions and domestic partnerships, ENDA has, sine the 110th Congress, carried exemptions stating that an employer will not be required to treat non-marital legal relations like civil unions and domestic partnerships in the same way as marriages. Due to the patchwork of legal recognition states currently afford same-sex couples, it is unlikely this provision will be abandoned in the near future.

The most significant positive change for trans people is the abandoning of language found in previous versions (2009, 2011,) that would have compromised a trans person’s coverage in certain public accommodations such as shower and locker rooms.

Why Have Some Pro-LGBT Legal Groups Raised “Grave Concerns” About the Bill?

ENDA has always carried exemptions for religious entities, but a new framework for religious exemptions said to be present in this bill’s text has a number of legal groups worried because it could give religiously-affiliated public facilities like universities and hospitals the right to fire LGBT staff.

This is because the bill draws on Title VII of the Civil Rights Act of 1964, which carries broad exemptions for religiously-affiliated entities. Crucially, Title VII does not allow discrimination on grounds of race, ethnicity, sex, or national origin, but it does not enumerate sexual orientation or gender identity or expression and as such would leave LGBTs vulnerable.

Lambda Legal explains in its press release on the bill why this is worrying:

It could provide religiously affiliated organizations — far beyond houses of worship — with a blank check to engage in employment discrimination against LGBT people. Some courts have said that even hospitals and universities may be able to claim the exemption; thus, it is possible that a religiously affiliated hospital could fire a transgender doctor or a religiously affiliated university could terminate a gay groundskeeper. It gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual’s race, sex, national origin, age, or disability. This sweeping, unprecedented exemption undermines the core goal of ENDA by leaving too many jobs, and LGBT workers, outside the scope of its protections.

There has been growing concern over the religious exemptions fever that seems to be sweeping the United States with a number of Legislatures including Kansas, Michigan and Tennessee, to name but a few, working hard to enshrine a religious right to discriminate in law and often at the expense of LGBTs.

Lawmakers would likely argue that, given ENDA or ENDA-like legislation has languished in Congress since 1974, some concessions are necessary. Certainly, carving out appropriate concessions is part of every legislative process. However, critics say this aspect of the bill sheers off vast swathes of protections and goes too far.

Will ENDA Pass the 113th Congress?

Unlikely. It would be remarkable should the bill even make it out of House committee, in fact. Rather, this reintroduction is to set the stage for such a time as when Democratic legislators hold a majority in the House and can (unlike in previous sessions) muster the will to take action on the bill.

Given that only 21 states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and only 16 states and the District of Columbia prohibit discrimination relating to gender identity, it is hard to overstate how important ENDA is to the LGBT community.

This also largely explains the continued frustration over the Obama administration’s refusal to issue a ENDA-like executive order while we wait for Congress to act.

 

Related Reading:

Boehner Totally Blase About ENDA

73% of Voters Want an LGBT Non-Discrimination Order

How To Discriminate Against Gays and Get Away With It

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138 comments

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8:59AM PDT on May 2, 2013

Mary K. you need to turn off Bill O'Reilly and get a clue. Businesses are free to express thieri religion through a nativity scene or saying "Merry Christmas" or anything else they want to do. The seperation of church and state only applies to state action. Also the government has NO BUSINESS promoting a National Day of Prayer, because prayer is NONE of the governments business.

Discriminating against employees is not a "religoious right." Like Pam said, get off the cross, we need the wood!

6:33AM PDT on May 2, 2013

I love it when christains whine every time they are "persecuted" against, but have no problem continuously persecuting others. Religious right should never trump civil rights.

6:39AM PDT on May 1, 2013

I hear a lot of Christians complaining that they are being persecuted, but what it boils down to is that they want the government to sanction their beliefs and make everyone else adhere to them. If you folks want to pray, or worship your deity, I don't have a problem with that, just don't expect me to join you. Don't expect me to follow your belief system. If you don't want to have an abortion, then don't have one. If you're against same-sex marriage, then don't marry someone of the same sex. Christianity is just one of many religions. This country was founded on the idea that everyone is free to choose whatever religion they want, or none at all.

9:34AM PDT on Apr 30, 2013

Good points, Linda! I've had two DARWIN symbols on my car....you know the ones....a fish which is growing legs.

They've both been defaced!

Apparently, some Christians are terrified that I have to right to support science!

9:11AM PDT on Apr 30, 2013

@MARY. I'm an atheist & I have absolutely no problem with you saying Merry Christmas or displaying a nativity scene. I also celebrate Christmas but solely as a time to get together with friends & family. I know nothing about taking down a cross at the WTC. A cross wouldn't offend me. Your religion annoys me at times but doesn't offend me unless you try to tell me live by YOUR beliefs.I don't tell you to live by mine. Could I drive around with a "Honk if you don't believe in god" bumper sticker without having my car vandalized or being insulted? Further, why would I do that except to annoy others but I've seen lots of religious bumper stickers. Have you ever seen an atheist bumper sticker? I haven't. It's very hard for either of us to defend against a claim of bigotry. How do you prove otherwise? The point is some religious feel they can discriminate against people for vague reasons related to their beliefs. What if I refused to hire you because you were Christian? YOU would be angry! I wouldn't do that. THAT WOULD BE BIGOTRY & that WOULD be depriving you of your right to be hired if otherwise qualified. I have never personally abrogated YOUR rights so don't get all righteous with me that I have done so.

3:34AM PDT on Apr 30, 2013

There is a loophole in every law, I suppose...

2:48AM PDT on Apr 30, 2013

Thank you for the article.

10:58PM PDT on Apr 29, 2013

Oh, baloney, Mary! You can show a nativity scene in your business. You just can't do it if you're publicly funded. Do you not understand the difference? I find that hard to believe, but, just in case you DON'T understand the difference....schools, courts, anything which is receiving publicly-funded monies is not allowed to demonstrate bias toward any religion. Do you not "get that?" I suspect you do....and I suspect you just LOVE feeling persecuted for your religion.

GET OFF THE CROSS!

Of course you can say "Merry Christmas"....if you want to be rude and if you want to make it all about yourself. Do you know if the recipient of your greeting is Christian? Then, by all means....say "Merry Christmas."

If not....then....it's rude.

Of course, you have every right to be rude.

Go for it!

Just don't expect everyone to ''respect'' you for your ''religious freedom.''

8:32PM PDT on Apr 29, 2013

how about not being able to display a nativity in my business? How about taking away the national day or prayer, or the right to say Merry Christmas? How about wanting to take down the cross at the twin towers? all because YOU don't want to be offended. Let's face it ladies You're all bigots against Christians, so don't YOU shove your beliefs down my throat.

6:29PM PDT on Apr 29, 2013

Gee Suba and Pam, when you ask what rights are being taken they never seem to be able to come up with answers - sort of like the men they asked about how gay marriage would affect their own. They couldn't come up with any answers either. I guess the secret is just to ask directly.

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