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ENDA: The Nightmare Scenario in Which GOPers Push a Bad Bill That Gay Groups Dropped

07/15/2014 11:43 am ET | Updated Feb 02, 2016
Copyright Jason E. Vines via Getty Images

Last week I wrote about the trap that gay groups may have set for themselves in a post-Hobby Lobby world, having previously backed a broad religious exemption in the Employment Non-Discrimination Act (ENDA). By week's end, most major groups had pulled their support for ENDA, following a few that pulled out before the Supreme Court's Hobby Lobby decision. But believe it or not, right now some Republicans are working feverishly to get support for ENDA in the GOP and try to pass it in the House in this session, with the dangerous religious exemption that caused LGBT groups to withdraw support.

The irony here is off the charts, but the idea being floated is that Republicans should realize that LGBT rights are inevitable, and that anti-gay GOPers should therefore grab at the chance to pass a bill that could broadly give an exception to religious organizations and the businesses they own and enshrine that discrimination forever.

As an added bonus, the Supreme Court might view the exemption as a way to expand that allowable discrimination to "closely held," for-profit companies owned by people who have religious objections to gays, as it did in the Hobby Lobby case regarding religious objections to some forms of birth control. One of the court's rationales in Hobby Lobby was that the Obama administration was giving an exemption to nonprofit religious institutions, so why not give it to massive for-profit companies that happen to be mostly owned by individuals with religious objections? Legal scholars who've studied the Hobby Lobby decision disagree about whether or not it could affect LGBT legal protections, now or in the future -- though all bets seem to be off if Justice Kennedy retires or dies while a Republican president is in office. But that's beside the point. It's all about what's happening right now.

Rep. Charlie Dent (R-Florida), who is among the eight GOP co-sponsors of ENDA, told the Washington Blade that he's still pushing to get it passed, with the broad religious exemption, because, among other things, the largest gay group, the Human Rights Campaign (HRC), still backs it, and he sees hope in attaching ENDA to some larger legislative vehicle. That, ironically, was one option, however unlikely, that many gay groups were banking on for ENDA (before pulling support), knowing it was next to impossible that House Speaker John Boehner would actually bring ENDA up for a vote on its own.

HRC does still back passage of ENDA in this session (as does House Minority Leader Nancy Pelosi, openly lesbian Sen. Tammy Baldwin and other Democrats), but in response to the pulling of support by the National Gay and Lesbian Task Force, Lambda Legal, the American Civil Liberties Union, the Transgender Law Center and others, HRC president Chad Griffin wrote in an op-ed last week that the group wants to "narrow" the exemption and also said the community should "throw its weight behind" a comprehensive civil-rights bill. If ENDA doesn't pass, he wrote, that bill would include employment as well as public accommodations, housing, education and credit -- something a lot of us have been demanding for a long time. However, Griffin didn't give any details or timeline regarding what would be an ambitious undertaking and a massive bill, and he refused to give interviews. And his group does still continue to lobby Republicans to support the current ENDA.

As Metro Weekly's Justin Snow reported and discussed with me on my radio program yesterday, the Log Cabin Republicans are dismayed by the pullout of the other groups, and they too are working the Hill trying to get Republican co-sponsors to pass ENDA in the House, as is the American Unity Fund, the group founded by conservative hedge-fund billionaire Paul Singer, who backed Mitt Romney in his failed presidential bid. Their selling point to fellow GOPers: ENDA protects religious liberties. You heard that right. Here's Log Cabin leader Gregory T. Angelo, from Snow's piece:

From a lobbying standpoint, I think this [debacle over the exemption] could potentially help ENDA in the House, because it underscores what has long been a lobbying strategy we have employed: this bill is going to pass sooner or later, and Republicans who care about religious liberty and equality would do well to prioritize its passage in this congress.

In truth, Hobby Lobby was an opportunity the other groups used to back out of a bill with an exemption they'd spoken out against for over a year, even as they backed passing ENDA with the exemption in the Senate last year, where it got over the 60-vote threshold with the help of GOP senators who voted for it because of the broad exemption. It's highly unlikely that ENDA will get passed in the House via any option available, with or without the gay groups onboard (and HRC's idea of "narrowing" the exemption would mean going back to the Senate again), but wouldn't it be the nightmare scenario if it did pass, with this exemption, and then LGBT groups had to demand that President Obama veto a bill he and Democrats had heralded for months?

Again, it's highly improbable that it would get to that, but I write this to underscore how this entire episode was amateur hour for the LGBT community. It's hard to believe it hasn't irked long-time supporters among both Democrats and Republicans in the Senate and the House (and the White House) who had the rug pulled out from under them.

ENDA should never have been pushed and passed in the Senate with a religious exemption, not in 2013 -- nor should we have even thought of doing that in 2012, 2011, 2010, or, frankly, 20-anything. HRC, in its usual arrogance, and with blinders on, refused to listen to the community and the growing chorus among the grass roots, the people who've experienced the progress we've made on marriage equality and support by the American public and who were saying "no" to an exemption for years. HRC assured our allies in the House and Senate that the community was behind it, and HRC was expected to keep a coalition together. It failed miserably.

The rest of the gay groups shouldn't be let off the hook either. They all backed ENDA, even after expressing serious reservations, and should have pulled out before the Senate vote. They were likely afraid of HRC's ability to affect their fundraising or their relationships with the White House and leaders on Capitol Hill. Hopefully they now have gotten some guts and have realized that HRC often needs a check on its myopic, access-driven, win-at-all-costs strategies, especially under a new leadership that refuses to even give interviews to the LGBT press, not responding to requests, its president only speaking to the community via vague, meticulously crafted op-eds. There's a critical need for more leadership, and it's time for these other groups to stand up.