A deeply divided Supreme Court ruled late last June in the “Hobby Lobby” case that companies can deny coverage of certain birth control methods if the company’s owners oppose them on religious grounds. While the ruling seemed quite narrow, many seasoned observers of the Court cautioned that the “religious exemption” could be extended to many areas of social welfare in which religions take a stand, notably GLBT rights.
So sweeping were the potential ramifications of the ruling that some gay rights organizations have withdrawn their support for the Employment Nondiscrimination Act (ENDA) that they’ve been fighting for at the federal level for years. This is because the current bill includes a religious exemption that could now be interpreted broadly by organizations to deny equal treatment of GLBT people.
Following is a statement issued by Lambda Legal explaining their decision to withdraw their support for ENDA.
SINCE the Supreme Court’s Hobby Lobby decision, there has been an alarming upsurge of calls for increased permission to discriminate by those who oppose LGBT equality and misread Hobby Lobby. LGBT people already endure appalling amounts of mistreatment at work by those using religion to discriminate. It is now all too obvious how damaging it would be to accept workplace equality standards for LGBT people that are unequal. To do its job, ENDA needs to provide explicit, effective, equal standards.
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 provision essentially says that anti-LGBT discrimination is different—more acceptable and legitimate—than discrimination against individuals based on their race or sex.
If ENDA were to pass and be signed into law with this provision, the most important federal law for the LGBT community in American history would leave too many jobs, and too many LGBT workers, without protection. Moreover, it actually might lessen nondiscrimination protections now provided for LGBT people by Title VII of the Civil Rights Act of 1964 and would undoubtedly generate confusion rather than clarity in federal law. Finally, such a discrimination provision in federal law likely would invite states and municipalities to follow the unequal federal lead. All of this is unacceptable.
The Supreme Court’s decision in Hobby Lobby has made it all the more important that we not accept this inappropriate provision. Because opponents of LGBT equality are already misreading that decision as having broadly endorsed rights to discriminate against others, we cannot accept a bill that sanctions discrimination and declares that discrimination against LGBT people is more acceptable than other kinds of discrimination.
We call on the Obama administration not to give religiously affiliated employers a license to discriminate against LGBT people when they have no such right to do so based on race, sex, national origin, age, disability, or genetic information. Such organizations are allowed to make hiring decisions based on their religion, but nothing in federal law authorizes discrimination based on any other protected characteristic, and the rule should be the same for sexual orientation and gender identity. Religious organizations are free to choose their ministers or faith leaders, and adding protections for sexual orientation and gender identity or expression will not change that.
These concerns are not hypothetical. Increasingly, this is what employment discrimination against LGBT people looks like. Take the example of Matthew Barrett. In July 2013, he was offered a job as food services director at Fontbonne Academy, a college prep high school in Milton, Massachusetts, that’s affiliated with the Roman Catholic Sisters of St. Joseph of Boston. The Academy has employees and admits students of various faiths. Yet, two days after Matthew listed his husband as his emergency contact on the standard employment paperwork, the job offer was rescinded. Although nothing about the job involved religious rituals or teaching, Matthew was told that the school was unable to hire him because “the Catholic religion doesn’t recognize same-sex marriage.” The current version of ENDA would authorize this kind of discrimination.
There was a national outcry against Arizona’s recent bill to allow companies to withhold service from LGBT customers based on the owners’ religious beliefs. The American people oppose efforts to misuse religious liberty to discriminate against gay people. It’s time for ENDA to reflect this reality. Until the discriminatory exemption is removed so that anti-LGBT discrimination is treated the same as race, sex, national origin, age, disability, or genetic information under federal workplace laws, we think ENDA should not move forward in Congress.
In addition, we will oppose any similar provisions at the state and local level. We are hopeful that the many members of Congress who support this historic, critically important legislation will agree that singling out LGBT people for an unequal and unfair exemption from basic workplace protection falls unacceptably short of the civil rights standards that have served our nation well against other types of discrimination for fifty years. We stand ready and eager to work with them to achieve the long-sought goal of explicit, effective federal non-discrimination protections for LGBT people.
Lambda Legal is a national nonprofit organization that both advocates and litigates on behalf of LGBT equality.
