There's been a lot of excitement over the Senate's likely passage of the Employment Non-Discrimination Act (ENDA) since the bill cleared its first hurdle, with 61 votes for cloture, on Monday. Much of the media is looking at that as a milestone, the first Senate vote on employment protections around both sexual orientation and gender identity. And pundits have been focused on the political story: a handful of GOP senators moving in favor of equality, joining all 55 Democrats in bringing victory on a bill that is highly unlikely to get a vote in the Republican-controlled House of Representatives.
But ENDA has a problem: a disturbing religious exemption that has been included in the bill in one form or another ever since it was first introduced in 1994 -- light years ago in terms of the speed of LGBT progress -- and by gay advocates themselves, to appease conservative, religious Democrats and Republicans. In that regard, they haven't updated ENDA for 2013. And really, the exemption should never have been in this civil rights legislation in first place, as The New York Times pointed out in an editorial this week:
The exemption would extend beyond churches and other houses of worship to any religiously affiliated institution, like hospitals and universities, and would allow those institutions to discriminate against people in jobs with no religious function, like billing clerks, cafeteria workers and medical personnel. The exemption -- which was inserted to appease some opponents who say the act threatens religious freedom -- is a departure from the approach of earlier civil rights laws.
So a Catholic school teacher who's done a great job for years could still be fired under ENDA if the school's principal discovers that she is a lesbian.
That's abhorrent. I'm not sure that many LGBT people know that, in 2013, our advocates in Washington, D.C., are still going along with that. To many in 1994, it seemed like an ugly compromise that had to be made in order to get any rights of any kind (though there were voices warning about the religious exemption even then). But in 2013, with Illinois getting on track to become the 15th state with marriage equality just yesterday, ENDA's religious exemption is clearly from the Stone Age and isn't something we should settle for anymore.
Before the week is over, there will be attempts by conservative senators to broaden and strengthen the religious exemption further. Sen. Pat Toomey (R-Pa.) wants to broaden the groups exempt under ENDA, allowing even private corporations to discriminate based on their religious beliefs, which would essentially gut ENDA. His amendment needs 60 votes and isn't likely to pass. A second amendment by Sen. Kelly Ayotte (R-N.H.) and Sen. Rob Portman (R-Ohio), basically restating the original exemption more emphatically, appears likely to pass.
The fact that ENDA is unlikely to get a vote in the House gives us a chance to make sure the religious exemption comes out of this bill. That may make it harder to get it passed, and it may take a lot longer, but so be it. There are no shortcuts or bargains on civil rights. And quite honestly, when you ask for crumbs from the outset, both your friends and your enemies don't take you very seriously. We still need full protections in employment, housing and public accommodations, and none should include any religious exemptions. We need to stop viewing the ENDA vote this week as a sign of how far we've come -- as much of the hyped-up media has been doing -- and instead view it as a sign of how much further we need to go.