Blog of Rights

Senate about to Pass ENDA: Now What?

By Shawn Jain, Media Strategist, ACLU at 1:16pm

Another day, another historic victory for LGBT people.

That's just kind of how 2013 has been. And the Senate being on the verge of passing a measure that would finally prohibit employment discrimination based on sexual orientation and gender identity – that's a BFD.

But now what? The Employment Non Discrimination Act (ENDA), after a 17-year battle, will likely pass the Senate in the coming days, but Speaker Boehner opposes the measure, so its prospects in the House are uncertain, to say the least.

So all is lost? Well no, not really.

This is a unique moment to pressure ENDA's lead sponsors and supporters to do the right thing and appropriately narrow the bill's sweeping religious exemption before the bill gets to the President's desk (which likely won't happen until 2015 at the earliest).

Why is this important? As currently drafted, the bill would give religiously affiliated organizations – far beyond houses of worship – 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.

Don't just take our word for it: The New York Times, The Los Angeles Times, and civil rights leader Julian Bond have all come out in support for narrowing the bill's sweeping religious exemption language:

"[ENDA] has a significant flaw — a terribly broad religious exemption…The exemption — which was inserted to appease some opponents who say the act threatens religious freedom — is a departure from the approach of earlier civil rights laws. And though the law would protect millions of workers from bias, the exemption would give a stamp of legitimacy to the very sort of discrimination the act is meant to end. Any attempt to further enlarge the exemption should be rejected." – The New York Times editorial board (Nov. 5)

"We're not sure any religious exemption is necessary. Under court decisions interpreting the 1st Amendment, religious institutions may choose their ministers without regard to anti-discrimination laws. It would be a shame if such an exemption — especially one that is not very carefully circumscribed, applying only to employees charged with preaching or propagating the faith — became the political price for enactment of ENDA." – The Los Angeles Times editorial board (May 3)

"Religious liberty, contrary to what opponents of racial equality argued then and LGBT equality argue now, is not a license to use religion to discriminate." – Julian Bond in Politico (June 12)

As the Senate debates ENDA in the coming days, we will likely see amendments offered to broaden this already overly broad religious exemption. We can't let that happen. Allowing it to would leave too many jobs and LGBT workers outside the scope of ENDA's critically important and long overdue protections.

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