Several major gay rights advocacy groups, including the ACLU, the National Gay & Lesbian Task Force, Lambda Legal, and GLAAD (but not HRC), have dropped their support for the current version of ENDA in the wake of the Hobby Lobby ruling, which they believe makes the exemption seen above much more powerful:
The groups said the federal Employment Non-Discrimination Act (ENDA) contains religious exemptions that are far too broad. Beyond typical exemptions for explicitly religious organizations like churches and ministries, ENDA includes provisions that would allow religious employers, such as a religiously affiliated hospital, to refuse to hire LGBT people. “ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations — including hospitals, nursing homes, and universities — a blank check to engage in workplace discrimination against LGBT people,” the groups argued. “The provision essentially says that anti-LGBT discrimination is different — more acceptable and legitimate — than discrimination against individuals based on their race or sex.”
But it is different in so far as a majority of major religions still sincerely hold that gay relationships are inherently sinful, indeed “objectively disordered” – and many base their views on literal readings of inerrant Scripture or centuries-old natural law. That includes the current, widely admired Pope. And even the gay left groups accept the legitimacy of some kind of religious exemption for ENDA. So the question is: how broad a religious exemption is needed in general and in the wake of Hobby Lobby?
On the first question, I ask myself what it would feel like for a religious organization to employ, say, a married lesbian. Does it truly affect a hospital’s ability to care for patients or to uphold certain beliefs if the nurse or janitor or doctor is gay? Of course not. A college or high school with respect to an openly gay teacher? A closer call – but only if they violate professional duties by, say, advocating things in the classroom that a religious group would disagree with, and not by just “being gay while working”. A corporation making automobiles? Please.
So I would probably narrow the current ENDA religious exemption a little – remove the word “corporation”? – but not by that much. And one reason I differ from my fellow gay and straight allies on this is that I fear they are understandably reacting to the emotional toll of the rhetoric being used by some on the culture war right and thereby over-reacting to a relatively narrow holding in Hobby Lobby. They are, particularly, missing the key points of Kennedy’s concurrence and forgetting the business push-back within the Republican coalition we saw in Kansas against any broad anti-gay employment discrimination statutes. To put it simply: I don’t believe that there’s a threat of the kind posited by many who see the world in utterly Manichean culture war terms. I fear that both sides are whipping themselves up into a lather that is largely unjustified.
But on the religious exemption in federal contracting, 
I favor none whatsoever. I gave my full reasons here. But my view is that if the government mandates something, you have a right to opt out in some circumstances on the grounds of religious freedom. But if you are actively seeking federal money, you have no right to attach discriminatory conditions to it. The right to religious freedom does not extend to the right to government subsidy and the right to discriminate. Pick one, Rick.
Then there’s the bizarre situation in which gay groups are effectively saying that they’d rather have no employment non-discrimination bill at all, than one with a religious exemption. This would be like saying you’d rather there were no ACA because of the Hobby Lobby decision – i.e. that the first ever government mandate for contraceptive insurance coverage should be voided entirely because a few companies can get an exemption from it.
It’s an easy position to take right now, of course, as Geidner notes, because this bill is going nowhere anyway in this Congress and probably not the next either. And it may be best seen as a form of jockeying in order to put countervailing pressure on the administration given the major religious right lobbying recently. But if it really came down to it – and gay groups actually opposed ending employment discrimination for gays because of the religious exemption, what they’re really saying is that they’d rather engage in culture war against the religious right than vastly improve the lot of millions of gay people. I think that’s short-sighted and a sad reflection on how polarized we have become.
Of course I appear to be an outlier here (as usual). I believe the greater narrative is one of huge advances in gay rights, and that some accommodation to the fast-losing side is actually more likely to sustain our victory than ratcheting the culture war dynamic still further. But understandable emotions – fueled by right-wing trolling – see the world as always darkening for gay people. So here’s how Joe Jervis sees it:
Years and years of hard-fought battles resulted in the Senate passage of ENDA in November 2013 by a vote of 64-32. I exulted in that moment, truly. But no hope of the bill progressing in the GOP-dominated House coupled with the Hobby Lobby ruling means that the entire LGBT rights movement must now focus on having LGBT Americans included under the broad protections of the Civil Rights Act of 1964.
Some are loudly arguing that LGBT opposition to ENDA is yet another case of the perfect being the enemy of the good, a cry that was also made when many of us objected after transgender protections were stripped from the 2007 version of ENDA. But as some of you have pointed out, exempting the very people most likely to discriminate from an anti-discrimination bill just does not make sense in the post-Hobby Lobby world.
Why not – if the actual result is their cultural and social isolation and punishment in the marketplace? Ask yourself: has the firing of gay teachers made the Catholic church seem more Christian and likely to appeal to more people? Please. With every decision like that, they lose an entire generation. What too many miss is how the marketplace has a role here. The reason so many major corporations have non-discrimination policies when it comes to gay people is not because they hold a view on the question; it’s that they don’t want to lose good employees or good customers. And the power of gay money in changing the world is far too easily dismissed by people whose job it is to focus on government. I think the market and the culture are fast accelerating gay integration, and we can afford a little moderation in giving space to our beleaguered opponents.
Yes, this may mean tolerating some nasty anti-gay discrimination from a few companies or religious institutions for a while, but the anti-ENDA campaigners have already shown that’s something they can live with – by preventing passage of ENDA indefinitely as it now stands. I think the compromise I favor does far less damage, while allowing the country to move ever forward on the integration of gay people in society.
Morrissey adds some perspective:
In the case of employment discrimination … courts have routinely ruled that government has a compelling interest in ensuring equal treatment regardless of religious beliefs, even those sincerely held. In fact, they have ruled that way even on commerce discrimination, most recently in the case of the bakers and photographers who didn’t want to participate in same-sex weddings. Statutory enforcement such as that in ENDA has been commonly considered the least-burdensome method of addressing that compelling interest. Hobby Lobby didn’t change a single stroke of that precedent. Even if the exemption clause in ENDA is broader than that in RFRA, the overall thrust of the statute and intent of Congress in passing it would still move the LGBT lobby’s goal forward on the ground first, and probably in courts, too — which would still end up having to do the same kind of balancing test that RFRA requires, using existing precedent.
Exactly. But the culture war has too much emotional energy right now for such cooler heads to prevail.
(Photos from Getty)
The Dish 