Why ENDA's Religious Exemption Must Be Narrowed

Remarkably, there are only 16 states that currently have workplace non-discrimination laws that are fully inclusive of LGBT people. This leaves LGBT people vulnerable to workplace discrimination in well over half of the country–an unacceptable situation that must be changed.

To address this, last week, the Employment Non-Discrimination Act (ENDA) was reintroduced in Congress. The legislation would prohibit employment discrimination based on sexual orientation and gender identity in most American workplaces, a critically important step towards full equality for LGBT people.

Of all the various bills in Congress impacting LGBT people, ENDA is the most important. In reintroducing the legislation, ENDA's congressional sponsors made a number of significant improvements to the new version of the bill. For instance, they deleted a provision from previous years that would have reaffirmed the discriminatory and unconstitutional Defense of Marriage Act (DOMA).

And though significant and important changes were made, one really bad provision was unchanged from past versions of the bill. It still has an unprecedented and overly broad exemption for religiously affiliated employers. You may be asking, "Is this really such a big deal?" The ACLU firmly believes that it is.

Title VII of the landmark 1964 Civil Rights Act grants churches, synagogues, and mosques, as well as some religiously affiliated organizations an exemption from the law's prohibition on religious hiring discrimination–meaning they can prefer members of their own faith in hiring. The purpose of this exemption is to permit a religious organization to require those who carry out its work to share its faith (and it has subsequently been interpreted to apply even when an employee's work is not itself religious). But, it is not a blank check for these organizations to discriminate for any reason. It does not, for example, permit discrimination on the basis of race or sex.

As it stands, ENDA's religious exemption could provide those same religiously affiliated organizations–again, not just houses of worship–with a blank check to engage in employment discrimination against LGBT people. It could allow, for example, a religiously affiliated hospital to fire a transgender doctor or a religiously affiliated university to terminate a gay groundskeeper. Beyond allowing greater discrimination, ENDA's religious exemption also 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.

As LGBT people gain greater equality under the law–at the local, state, and, yes, federal level–opponents are increasingly arguing that their religious beliefs need to be accommodated in the form of special rights to discriminate because they are now the "victims" of LGBT equality.

Religious liberty is very important and guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs–but it does not allow us to harm or discriminate against others. Religious liberty, contrary to what opponents of equality argue, is not a license to use religion to discriminate.

These kinds of proposals are not new. In both 1964 and 1972, there were attempts to create a blanket exemption in the civil rights law for religious organizations to allow them to discriminate in hiring on the basis of not only religion, but also race, sex, and national origin. Yet, both times, Congress limited the exemption provided to these organizations was to an ability to prefer members of their own faith, and rejected kind of blank check to discriminate that ENDA would give these organizations with respect to sexual orientation and gender identity in 2013.

The LGBT community and those who advocate for LGBT people must not allow this. Now is the time to draw a line in the sand and make clear that blank checks to discriminate are incompatible with basic fairness and equality under the law for LGBT people. We remain hopeful that our allies in Congress will agree that singling out LGBT people alone for this kind of unequal and unfair exemption to otherwise applicable non-discrimination laws has no place in this historic, long-overdue legislation.

The authors are, respectively, legislative representative on issues related to LGBT rights and legislative counsel on issues related to religion and belief in the ACLU's Washington Legislative Office.

Learn more about LGBT discrimination in the workplace and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Add a comment (6)
Read the Terms of Use

Anonymous

Why should churches be protected from the consequences of their bigotry? What will it take for our lawmakers to stand up to the ignorance spewed by religious leaders? Their preaching on homosexuality is rejected by mainstream medical and psychological communities as potentially harmful to LGBT people. We all know the devastating toll suicide takes on LGBT youth who struggle with their sexuality. Why would we ignore this sad reality and support the right of any organization to drive these kids further into despair? They must be told in no uncertain terms that our laws will not grant exemptions for religious ideas that are harmful to others.This is a human rights issue, not a religious one. If they want to hate, they should hate at their own risk.

John Buckley

Why should churches be protected from the consequences of their bigotry? What will it take for our lawmakers to stand up to the ignorance spewed by religious leaders? Their preaching on homosexuality is rejected by mainstream medical and psychological communities as potentially harmful to LGBT people. Why would we ignore this reality and support the right of any organization to discriminate? They must be told in no uncertain terms that our laws will not grant exemptions for religious ideas that are harmful to others.This is a human rights issue, not a religious one. If they want to hate, they should hate at their own risk.

Anonymous

Why does the everyday person have to continously have to listen to the lgbt people cry about everything? I have many gay friends that are getting fed up with the whiners also.

Anonymous

Only an attorney would try to pass off this sort of category, emotionally driven drivel as reasoned argument:

" In both 1964 and 1972, there were attempts to create a blanket exemption in the civil rights law for religious organizations to allow them to discriminate in hiring on the basis of not only religion, but also race, sex, and national origin. Yet, both times, Congress limited the exemption provided to these organizations was to an ability to prefer members of their own faith, and rejected kind of blank check to discriminate that ENDA would give these organizations with respect to sexual orientation and gender identity in 2013."

Being black, female, or British does not imply specific behavioral choices that, according to the precepts of many faiths, carry specific moral implications, as does sexual orientation. Religious organizations should not have to employ anyone whose open lifestyle choices are antithetical to its religious teachings.

Anonymous

This is getting freaking ridiculous, we finally have a law that will protect LGBT members from being fired for being gay, but you are now having a fit about the small amount of places that can discriminate. We should really just get over it, these places have the right to religious freedom and according to their religious freedom they disagree with homosexuality. So if they choose to run THEIR business that way , then that is their choice and they are well in their rights to run an organization in that way. You guys seem to miss the real issue here. The issue is that we have a society that thinks they have the right not to be offended. If you get discriminated against, don't go there, and make sure people know what kind of organization they are. That is the only thing we can really do in this situation. Religious freedom gives them the ability to run their places in the way they seem fit. If you have a problem with that go some where else. If you mess with their ability to express religious freedom then you are opening a can of worms that will go on forever. The real issue here is two free speech rights that clash. This is not a battle that is easily won. You can triumph without trumping over someone's free speech on this one.

Rabbi Adam J Bernay

Yes, narrow religious exemptions from ENDA. Because who really gives a care about the First Amendment? I have turned down many jobs in my lifetime because they would require me to work on the Sabbath. Certainly, I could have pushed it legally to FORCE them to allow me to take Sabbath off, but I decided that it would not benefit me to set up an adversarial situation with an employer, and I also realized that if they were of a mind to act that way to begin with, then I didn't want to work for them. Why in the WORLD would LGBTs want to put themselves in such a situation?

Sign Up for Breaking News