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:
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
(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.
In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.
When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.
In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.
On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.
Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!
And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.
Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.
Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.
Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.
The FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.