UPDATE, November 7, 2:27 p.m.: The Senate approved the Employment Non-Discrimination Act with a 64-32 vote. The ENDA will now move on to the House.
UPDATE, November 7, 12:20 p.m.: The Toomey amendment was voted on in the Senate Thursday, failing 43-55.
The Employment Non-Discrimination Act (ENDA), which would protect lesbian, gay, and transgender people against workplace discrimination, is poised for a vote in the Senate as early as this week. The current version of the bill (S 815) came with broad religious exemptions attached, and now even broader exemptions are being included.
As reported previously by RH Reality Check, the religious exemptions
currently folded into the bill are broad enough to allow Catholic schools to continue firing teachers for being gay. These base religious exemptions were not broad enough, however, to satisfy some key Republican senators who voted to let the bill proceed to a general vote. As a result of conversations between those senators prior to their vote, two new amendments with broader religious exemptions, are expected when ENDA comes to the Senate floor.
The first amendment, expected from Senator Toomey (R-PA), would expand the universe of employers allowed to discriminate against LGBT employees and prospective employees. Under Toomey’s amendment,
private employers might assert an institutional right to discriminate under the guise of religious freedom.
Toomey’s amendment would require 60 votes for passage, which is considered unlikely in the Democratic-controlled Senate. The National Women’s Law Center provided RH Reality Check with a copy of a sign-on letter it is circulating in opposition to the Toomey amendment, noting that “ENDA’s current exemption is already compromise language that provides LGBT individuals with less protection than other protected groups.”
This is not the first time that religious exemptions written into initial legislation as a sort of preemptive compromise have failed to satisfy social conservatives flying a flag of religious freedom. Speaking to contraceptive coverage under the Affordable Care Act, Anthony Picarello, the general counsel for the U.S. Conference of Catholic Bishops famously lamented, “If I quit this job and opened a Taco Bell, I’d be covered by the mandate.”
In an editorial published in USA Today, Ralph Reed, chair of the Faith and Freedom Coalition, likened the debate to the battle over contraceptive coverage as part of the Affordable Care Act. Reed writes that he is against employment discrimination and describes ENDA as “a dagger aimed at the heart of religious freedom for millions of Americans.”
The second amendment,
from Sens. Kelly Ayotte (R-NH) and Rob Portman (R-OH), which reportedly passed by a voice vote Wednesday afternoon, would prevent those religious institutions accepting government funds from being disciplined by federal, state, or local governments for opting out of ENDA. For the purposes of the amendment, the scope of which institutions would qualify as a religious institution is not clear, but under the exemption already in the current bill, parochial schools are clearly exempt.
Protecting parochial schools from litigation related to ENDA has large financial implications for those that might continue discriminating on the basis of sexual orientation and gender identity. Last year, an examination of voucher programs in the the Wall Street Journal concluded that Catholic schools in particular “are benefiting disproportionately from the rise of vouchers,” and the Ayotte/Portman amendment would protect them from actions that might force them to comply with ENDA or lose access to such funding.
In response to the entire slate of religious exemptions up for consideration in ENDA, LGBT advocacy group GetEQUAL sponsored a joint press conference on Capitol Hill with allied student, racial justice, and reproductive rights organizations. Group co-director Heather Cronk expressed enthusiasm about progress toward employment protections while expressing “concern that these broad religious exemptions undermine the very problem they’re trying to solve.”
At the end of the day, these votes are more likely to set precedent than shape a workplace protection law ready for passage.
House Speaker John Boehner (R-OH) has expressed opposition to ENDA, making a vote this session unlikely. Still, with a majority of voters supporting ENDA and some efforts within the Republican Party to reach out to LGBT individuals, this issue could well resurface in a future Congress. Precedent is not without practical effect; for example, transgender protections first inserted into a House ENDA bill in 2009 are in the Senate version today.