ENDA Advocates Battle One New Religious Exemption, Resigned to a Second

Ohio Republican Senator Rob Portman. | BILL INGALSS/ NASA/ WIKIMEDIA COMMONS

Ohio Republican Senator Rob Portman. | BILL INGALLS/ NASA/ WIKIMEDIA COMMONS

With the Senate set to consider two Republican amendments as it takes up the Employment Non-Discrimination Act this week, LGBT advocacy groups do not see either as “necessary,” but are more concerned about defeating one than the other.

An amendment proposed by Pennsylvania Republican Senator Pat Toomey would broaden the eligibility for claiming a religious exemption so that a private corporation could potentially opt out of ENDA’s legal requirement that it not discriminate on the basis of sexual orientation or gender identity. That amendment, which would likely gut the measure, is almost certain to fail because when it is considered on the floor it will need 60 votes to prevail.

New York Senator Chuck Schumer predicted that all or nearly of his Democratic colleagues, each of whom has endorsed ENDA, would vote against such an amendment.

The second amendment is one put forward by Ohio Republican Rob Portman and his New Hampshire colleague Kelly Ayotte. According to Senate sources, the language of that amendment has not yet been finalized, but in general terms it would prevent the federal government or state and local governments receiving federal money from penalizing a religious organization exercising its religious exemption under ENDA by withholding the right to participate in or receive benefits under programs they administer.

That amendment, which will need only a majority for approval, is likely to succeed with the votes of ENDA’s supporters.

Senate sources as well as the Human Rights Campaign (HRC) and the American Civil Liberties Union (ACLU) told Gay City News they do not see any risk that state and local government LGBT rights protections would, in general terms, be pre-empted by this amendment.

According to a memorandum written by HRC that was obtained by Gay City News, “this amendment would prevent the Department of Housing and Urban Development, for example, from refusing to allow an organization that uses the ENDA religious exemption from participating in a grant program to provide housing for homeless individuals. However, it does not change the fact that, by regulation, HUD grantees cannot discriminate in those programs based on sexual orientation and gender identity.”

A Senate source told the newspaper that Portman and Ayotte’s concern related to potential “retaliation” –– for example, a local zoning board denying approval to a facility operated by an organization claiming a religious exemption based on its use of that exemption. That organization, however, would still be liable for violating provisions of the local government’s LGBT rights ordinances.

“The amendment also makes clear that it does not invalidate otherwise applicable federal, state, and local laws and regulations, including nondiscrimination requirements, to which an exempt religious organization is subject,” the HRC memorandum stated. “In addition, Section 15 of ENDA makes clear that the Act does not invalidate or limit the rights, remedies, or procedures available under any other federal, state, or local law.”

According to Fred Sainz, an HRC spokesman, the group “believes this language is unnecessary, but does not oppose it. We believe this merely restates the status quo for religious employers.”

Ian Thompson, an ACLU legislative representative in Washington, similarly said the amendment “preserves the status quo,” adding “it creates no new liabilities and offers no new immunities.”

Thompson acknowledged that “from a political standpoint, it is likely to end up in the bill.” He added, “We do not support it or see it as necessary.”

The Toomey amendment, on the other hand, “would create a dangerous license to discriminate,” Thompson said. “It is completely unacceptable.”

“HRC is opposed to the amendment,” Sainz wrote regarding the Toomey proposal. “We believe it undermines core American values, could cause harm and increase litigation.”

The Democratic leadership’s agreement to consider the amendments emerged from the effort to find the 60 votes necessary for a cloture motion to block a filibuster by senators opposed to ENDA. As the cloture vote approached, 60 members had signaled their support for the bill, but neither Democrat Claire McCaskill, at home in Missouri for her mother’s funeral, or Alaska Republican Lisa Murkowski, who had voted for the bill in committee earlier this year, were on hand. Portman, Ayotte, and Toomey were the three Republicans in play, and according to one Senate source, none of the three wanted to be the 60th vote, so getting all of them and approving the cloture motion with 61 votes was the preferred route.

Even had McCaskill and Murkowski been on hand, there were indications that Orrin Hatch, a Utah Republican who voted for ENDA in committee, would have required additional religious exemption language had Portman, Ayotte, and Toomey not been pressing for it. Toomey, who will not get the amendment he wants, presumably plans to tell constituents opposed to his support for allowing an up or down vote on ENDA that he at least fought to limit its impact.

Agreement on offering the two amendments came down to the wire as the cloture tally stalled at 58 votes. Top Democrats –– including Majority Leader Harry Reid of Nevada, lead ENDA sponsor Jeff Merkley of Oregon, and New York’s Schumer –– engaged in a Senate cloakroom negotiations with Portman, Ayotte, and Toomey. Portman gained wide attention last year when he announced his support for marriage equality while saying his son is gay.

Even before the Republican religious exemption amendments came up this week, there was disagreement among advocates about the language on that issue in ENDA. In May, a group of legal advocacy groups — including the ACLU, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center — issued a statement warning that the religious exemption language proposed in the bill provides religiously affiliated groups, including hospitals and universities, with considerably more leeway to discriminate than is customary in civil rights legislation.

At a September 12 forum on ENDA at New York Law School, Tico Almeida, currently the head of Freedom to Work who, in his former role as co-counsel on the House Education and Labor Committee, authored the religious exemption language, defended it, arguing it was a “cut and paste” from Title VII provisions of the 1964 Civil Rights Act. Still, he conceded that Catholic Charities, a large nationwide non-profit that is a major social service provider and employer in many cities, would be exempt from ENDA’s provisions.

In most LGBT nondiscrimination legislation enacted across the country, religious organizations directly related to faith and worship activities are free to apply a religious test for employment. Organizations such as hospitals, however, which act as public accommodations serving the population at large, typically cannot claim a religious exemption except for faith-related activities.

In the wake of the successful cloture vote, New York’s Schumer told Gay City News, “We have clearly paved the way for victory in the Senate this week.” House action in the 2013-2014 session, however, appears unlikely. According to a spokesman for Republican House Speaker John Boehner, “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”

California’s Nancy Pelosi, the House minority leader, issued a statement on November 4 criticizing Boehner’s intransigence, and suggested that the sort of public pressure that last year forced the House’s GOP leadership to allow a vote on reauthorization of the Violence Against Women’s Act (VAWA), which included specific protections for members of the LGBT community, might be a route to victory to victory on ENDA, as well.

“We made that bill too hot for the Republicans to handle,” Pelosi said of VAWA.

In Schumer’s view, success in the House is “uphill battle,” but he hastened to add that advocates have to “keep the pressure on.” He said that Pelosi’s borrowing from the VAWA playbook was likely the only realistic prospect for success in the current House.

Calls to Merkley’s and Portman’s offices seeking comment on the religious exemption amendments were not returned.