ENDA Is Toast
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.
US Senate Passes ENDA
November 7th, 2013
In a landmark 64-32 bipartisan vote, U.S. Senate gave its approval to the Employment Non-Discrimination Act (ENDA).
Fifty-four Democrats were joined by ten Republicans to support the measure: Sens. Kelly Ayotte (NH), Susan Collins (ME, cosponsor), Jeff Flake (AZ), Orrin Hatch (UT), Dean Heller (NV), Mark Kirk (IL, cosponsor), John McCain (AZ), Lisa Murkowski (AK), Rob Portman (OH), and Pat Toomey (PA). Sen. Bob Casey (D-PA) was absent due to family reasons.
ENDA now includes a significantly broad set of religious exemptions. As The New York Times pointed out in its criticism of the bill last weekend:
The Employment Nondiscrimination Act, however, has a significant flaw — a terribly broad religious exemption. The exemption would extend beyond churches and other houses of worship to any religiously affiliated institution, like hospitals and universities, and would allow those institutions to discriminate against people in jobs with no religious function, like billing clerks, cafeteria workers and medical personnel.
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.
The Times said that “Any attempt to further enlarge the exemption should be rejected,” but an amendment yesterday offered by Sens. Portman and Ayotte (with McCain co-sponsoring) did just that. Their amendment reads:
A religious employer’s exemption under this Act shall not result in any action by a Federal government agency, or any state or local government 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 government agency. Nothing in this subsection shall be construed to invalidate any other federal, state, or local law or regulation that otherwise applies to an employer exempt under this section.”
That amendment was approved yesterday. Today, the Senate rejected another amendment by Sen. Tooley that would have expanded the scope of employers exempted from the Act.
The bill now goes to the House, where House Speaker John Boehner (R-OH) has already said that he opposes the law, making it unlikely that he will bring it to a vote. Many observers believe that if it did come to a vote, there would be enough bipartisan support to ensure its passage.
Sen. Mark Kirk’s Floor Speech for ENDA
November 5th, 2013
Nearly two years ago, Sen. Mark Kirk (R-IL) suffered a serious stroke. He remained hospitalized for three months and went through rehabilitation for the rest of the year before returning to the Senate in January of this year. But until yesterday, he hasn’t made a floor speech since his return. He broke his silence yesterday when he spoke in favor of cloture for the Employment Non-Discrimination Act (ENDA):
ENDA Passes Senate Cloture
November 4th, 2013
The Senate has voted 61-30 to invoke cloture on the Employment Non-Discrimination Act (ENDA), setting up what appears to be its assured passage for a final Senate vote on Wednesday. Seven Republicans joined 54 Democrats in voting for cloture. The seven GOP ayes were: Sens. Kelly Ayotte (NH), Mark Kirk (IL), Susan Collins (ME), Orin Hatch (UT), Dean Heller (NV), Rob Portman (OH), and Pat Toomey (PA). Sens. Kirk and Collins were co-sponsors. Heller announced his support earlier today. Sen. Lisa Murkowski (AK) had voiced her support for ENDA but didn’t cast a vote today. Sens. Ayotte and Portman were a last-minute additions. Portman’s son was particularly happy to see his dad’s vote:
— Will Portman (@wdportman) November 4, 2013
Update: Sen. Kirk, who suffered a stroke in January 2012, broke his silence for his first Senate Floor Speech since returning:
“I have been silent for the past two years due to a stroke,” Kirk said. “I’ve risen to speak because I believe so passionately in… ENDA.”
Sen. Dean Heller Becomes Sixtieth ENDA Vote
November 4th, 2013
Sen. Dean Heller (R-NV) made the announcement moments ago:
After listening to Nevadans’ concerns about this issue from a variety of viewpoints and after numerous conversations with my colleagues, I feel that supporting this legislation is the right thing to do. Under the leadership of this Governor, as well as the legislature over the past several years, Nevada has established a solid foundation of anti-discrimination laws. This legislation raises the federal standards to match what we have come to expect in Nevada, which is that discrimination must not be tolerated under any circumstance,” said Senator Dean Heller.
Senate passage of the Employment Nondiscrimination Act (ENDA) now looks assured. The House, though, is a completely different story.
ENDA Isn’t Controversial Among Voters — Not Even In Mississippi
November 4th, 2013
Today, the Senate will hold a cloture vote on the Employment Nondiscrimination Act (ENDA). It’s not clear yet whether the votes are there to cross the 60-vote threshold needed to proceed. The Washington Post’s Jeff Lax and Justin Phillips delved into the state-level polls and found widespread support for ENDA, even in such conservative states as Mississippi:
Nearly all recent opinion polls indicate that a large majority of the American public — more than 70 percent — supports efforts to make employment discrimination against gay men and and lesbians illegal. Of course, these national numbers are not what the senators are likely to care about. However, when we use national polls to estimate opinion by state, we find that majorities in all 50 states support ENDA-like legislation (note that in 1996, majorities in only 36 states supported ENDA). Today, public support ranges from a low of 63 percent in Mississippi to a high of 81 percent in Massachusetts. Here’s the graph of the approximate numbers based on our estimates from survey responses:
Intensity of opinion also favors ENDA — people who “strongly favor” a ban on employment discrimination outnumber those who “strongly oppose” it in every state, usually by 20 percentage points or more.
Based on the state-level polls, Lax and Phillips suggest that Sen. Kelly Ayotte (R-NH) would be a good target for the critical sixtieth vote; ENDA enjoys a whopping 77% support in the Granite State.
ENDA passes Senate committee
July 10th, 2013
Today the Senate Health, Education, Labor and Pensions Committee took up the Employment Non Discrimination Act today. (RollCall)
Three Republicans joined all the Democrats on the Senate Health, Education, Labor and Pensions Committee as it endorsed legislation that would ban workplace harassment and job discrimination nationwide based on sexual orientation or gender identity. The 15-7 approval vote makes clear that a majority of senators support passage, and that the roster of supporters is no more than a handful short of the 60 necessary to overcome a guaranteed filibuster from Republican cultural conservatives.
The Republicans voting yes were Lisa Murkowski of Alaska, Mark S. Kirk of Illinois, and Orrin Hatch of Utah. Sue Collins of Maine (not on that committee) has also signed on as a sponsor.
The “no” votes were Lamar Alexander (Tennessee), Michael Enzi (Wyoming), Richard Burr (North Carolina), Johnny Isakson (Georgia), Rand Paul (Kentucky), Pat Roberts (Kansas), and Tim Scott (South Carolina).