ENDA Is Toast

Jim Burroway

July 9th, 2014

There’s really no other way to describe the current state of the Employment Non-Discrimination Act. Not that it was ever going to go anywhere in this Congress where the Republican Caucus in the GOP-led House had less than a zero percent chance of bringing it up for a vote after the Senate gave its rare bipartisan approval last November.

But ENDA has gotten even toastier lately, particularly after last month’s Supreme Court decision in the Hobby Lobby case. That decision, which was a statutory one rather than a question of constitutionality, held that privately or closely-held for-profit corporations could opt out of providing birth control as part of its health care plan under the Affordability Care Act (ACA) if doing so would violate their religious beliefs. While the majority opinion said that their opinion applied only to birth control and nothing else, it failed to provide a coherent “stopping principle” to show exactly which legal precepts would limit the decision to birth control in the future. Most tellingly, Justice Samuel Alito, writing for the majority, did provide an example of how race protections would remain in force, but declined to show how any anti-discrimination protections based on sexual orientation or gender identity would survive.

The fact that the Hobby Lobby decision was a statutory rather than a constitutional one is critical. Hobby Lobby argued that there was a conflict between the ACA and the Religious Freedom Restoration Act (RFRA). In hindsight, if the ACA had included a specific clause exempting it from the RFRA, there would not have been a case to take before the Supreme Court. But without such a clause, Hobby Lobby saw an opportunity.

So here’s the problem for ENDA. When the Supreme Court looks at conflicts between legislation brought by Congress, it looks at other laws to see how Congress viewed that legislation. In the Hobby Lobby case, the Supreme Court looked at how Congress treated other abortion and birth control measures, some of which included religious exemptions, and concluded that Congress had effectively expanded the RFRA to cover the ACA even though the ACA itself had no specific religious exemption.

ENDA, in its current form, would make the situation much worse than what happened to the ACA. In order to get jittery representatives to sign on to ENDA, supporters included a religious-exemption clause in Section 6:


(a) In General.–This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)) (referred to in this section as a “religious employer”).

(b) Prohibition on Certain Government Actions.–A religious employer’s exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer’s participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

Because ENDA contains an explicit LGBT-only religious exemption, the Supreme Court could, in following the Hobby Lobby precedent, look at that exemption in ENDA and conclude that Congress had effectively expanded the RFRA to cover a whole host of LGBT-rights regulations that have come about since the demise of Section 3 of the Defense of Marriage Act, including health care, hospital visitations, spousal benefits, and so forth. The possibilities for unintended consequences are enormous.

Arizona’s so-called “religious freedom” bill that Gov. Jan Brewer (R) vetoed last February focused attention on religious exemptions generally, including those in ENDA. But it wasn’t until the Supreme Court’s method for interpreting the RFRA in the Hobby Lobby case showed the unintended consequences of religious exemption clauses in unrelated legislation that LGBT organizations which had previously supported ENDA have now taken a second look.  Just yesterday, American Civil Liberties Union, Gay & Lesbian Advocates & Defenders (GLAD), Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, have issued a joint statement announcing they were withdrawing their support for ENDA. The National Gay and Lesbian Task Force withdrew its support in a separate statement.

Their worry is not so much over ENDA itself — it was never  going to go anywhere in the House — but over a forthcoming executive order from President Obama that would extend anti-discrimination protections for sexual orientation and gender identity expression to federal contractors. The concern here is that the Obama administration may lift the language of the religious exemption clause from ENDA and graft it into his executive order, and thereby effectively eviscerate the order’s effectiveness for large numbers of LGBT people.

Richard Rush

July 9th, 2014

So, I guess what all this means is that ENDA, as currently written, finally has a good chance of passage by the Republican-controlled House . . . because, in light of the Hobby Lobby case, ENDA would apparently facilitate even greater discrimination by religious people against gays than is possible without it. And nowadays, religious people are really the only ones who want to discriminate against gays anyway.

Of course, the current Senate and President would be likely to block it, but after the 2016 elections, who knows?

This whole thing has the potential to completely redefine irony.

Michael Moore

July 10th, 2014

I don’t see how the consequences of RFRA and its religious exemptions are “unintended,” as you characterize them. These kinds of things were precisely what was intended by passage of RFRA. Personally, I think it is overbroad and have always thought so. It heavily favors freedom of religion at the expense of freedom from religion. But that is exactly what it was intended to do.

Jim Burroway

July 10th, 2014

IT’s not the unintended consequences of RFRA itself, but of other legislation that contained amendments and clauses for religious exemptions that went beyond RFRA — much like the one in ENDA — that was perceived at the time as applying only to those respective pieces of legislation, but which the Supreme Court ruled expressed a desire to effectively expand RFRA’s scope beyond the purposes of the original legislation that carries those clauses.

In other words, the Supreme court said that because of RFRA as a baseline, and because of other legislation that expanded religious exemptions beyond what RFRA provided for abortion and birth control — even though those other exemptions were made only for those other pieces of legislation and no other legislation — that they nevertheless apply to ACA as an overall “intent” of Congress even though the letter of the law does not say so. (So much for originalism.)

And so the concern here is that the religious exemption for ENDA may be taken by a future Supreme Court case as applying for cases that go beyond employment discrimination if the Court decides that the ENDA exemption is evidence of a “sense of Congress” for other legislation.


July 10th, 2014

We have always argued that religious exemptions in ENDAs and marriage equality laws ought to be unnecessary, but since they never seemed to expand those exempt beyond what was already reasonably defined in US law, they were hard to protest. Perhaps we should go back to the “These exemptions aren’t necessary” and point to the Hobby Lobby case as evidence that those demanding exemptions are the ones being unreasonable.

Priya Lynn

July 10th, 2014

What do you mean by “the Hobby Lobby decision was a statutory rather than a constitutional one”?

Jim Burroway

July 10th, 2014

The Court was asked to resolve what Hobby Lobby called a conflict between the ACA and the RFRA. The Constitution (I.e. the First Amendment, for example) was not a part of the claims in this case, and therefore was not a part of the decision. And because the decision rests on an interpretation of statutes rather than the Constitution, Congress can effectively overturn the court’s decision by modifying the ACA, the RFRA, or through other legislative action. Not that this Congress is likely to do so, but a saner Congress could.

Priya Lynn

July 10th, 2014

I get it now, thanks Jim.

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