Box Turtle Bulletin

ENDA Is Toast

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.