THE BLOG
10/08/2013 04:28 pm ET Updated Feb 02, 2016

Is a 'Magic Wand' Needed to Fix Anti-Discrimination Bill?

In a wide-ranging interview with Salon's Josh Eidelson, Sen. Tammy Baldwin (D-Wis.), the first openly LGBT member of the U.S. Senate, was asked several questions about efforts to protect LGBT people from workplace discrimination, including the Employment Non-Discrimination Act (ENDA). Sen. Baldwin was also asked for her views on the scope of ENDA's sweeping religious exemption. Her answer:

Legislating is the art of compromise, and so the version that was introduced in the U.S. Senate has fairly -- let's say a large religious exemption. If I were to have a magic wand, I probably would use the same language that applies to race and gender discrimination. But that wasn't the language that was included in this draft.

Let me state clearly that Sen. Baldwin has been and remains a steadfast champion for LGBT people and equality under the law in Congress. The fact that she recognizes just how broad (in the view of the ACLU and others, too broad) the current exemption is, and her desire to ideally see something that would treat LGBT discrimination in a similar manner to race and sex discrimination, are positive signs that it can and will be narrowed. Right now, the bill would give religiously affiliated organizations a blank check to engage in employment discrimination against LGBT people.

Happily, what is needed to actually narrow ENDA's religious exemption is not a "magic wand," but rather for ENDA's sponsors (just four Members of Congress, all of whom are stalwart supporters of LGBT rights) to realize that narrowing the religious exemption language won't doom the bill (doing so is also essential to not leave too many jobs, and LGBT workers, outside the scope of ENDA's protections).

Look, I'll concede that things may have been different 20, 10, and maybe even five years ago. But the political compromises that may have been necessary to advance ENDA back then are no longer needed. The tide has turned so rapidly on LGBT rights that recent gains weren't even imaginable just a few years ago.

This sea change has benefited ENDA specifically. A national poll released last month by a respected Republican pollster put support for ENDA at 68 percent, including 56 percent among Republicans. The American people support and believe in protecting their LGBT colleagues from workplace discrimination.

So if ENDA does not pass both the House and Senate in the current 113th Congress (something Sen. Baldwin herself conceded was unlikely), what ENDA's sponsors must do is ensure that the religious exemption is narrowed when the bill is introduced the next go around in 2015. I promise, this won't require a "magic wand." And that's not just because magic wands don't exist.

Federal legislation to protect LGBT people from workplace discrimination is way beyond overdue, but in getting ENDA over its final hurdles in Congress, it is critically important to ensure that the religious exemption within it does not needlessly dilute critical protections and treat LGBT discrimination as different, somehow more legitimate, than other forms of discrimination.

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