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Have Gay Groups Set Their Own Trap With a Religious Exemption in ENDA?

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EMPLOYEE NONDISCRIMINATION ACT
WASHINGTON, DC - NOVEMBER 05: Senate Majority Leader Harry Reid (D-NV) (C) talks with reporters after attending the weekly Senate Democratic Caucus policy luncheon at the U.S. Capitol November 5, 2013 in Washington, DC. The Senate overcame a procedural hurdle Monday to move closer to passage of the Employment Non-Discrimination Act of 2013, which would outlaw workplace discrimination based on sexual orientation and gender identity. (Photo by Chip Somodevilla/Getty Images) | Chip Somodevilla via Getty Images

In the wake of the Supreme Court's Hobby Lobby decision, and while the White House is still drafting an executive order banning anti-LGBT discrimination among federal contractors, a lot of people are wondering if LGBT groups and members of Congress set a trap for themselves and the rest of us by backing a broad religious exemption in the Employment Non-Discrimination Act (ENDA).

Back in November, the week ENDA passed the Senate, I noted that it was stuck in a '90s time warp. If passed by the House and signed into law, ENDA would ban discrimination against LGBT people in employment but with the same broad religious exemption it had in the early '90s -- a pre-marriage equality era when many would have accepted any protections of any kind.

ENDA was never updated to a time when we should have a full civil rights bill, banning discrimination not just in employment, but in public accommodations, housing and credit, with no broad religious exemptions. ENDA would allow a Catholic hospital or school to fire a lesbian nurse or janitor or cafeteria cashier simply on the basis of her sexual orientation. That is a much broader exemption than allowed for any other group under the 1964 Civil Rights Act. And it's abhorrent.

A lot of other people were speaking out about the exemption during the debate in the Senate over ENDA at the time. The New York Times editorialized against it. The ACLU warned about it as did the National Center for Lesbian Rights (NCLR) and Lambda Legal. Meanwhile, groups like the Human Rights Campaign (HRC) and Freedom to Work defended the exemption (and continue to do so). Groups that warned about the exemption didn't go so far as to pull support for the bill. ENDA got over the 60-vote threshold, passing with 64 votes, with the help of several Republicans who voted for it because of the exemption, like Sen. Rob Portman (R-Ohio) and Sen. Orrin Hatch (R-Utah).

Now we have anti-gay religious leaders like Rick Warren writing letters to the president urging him, in the wake of the Supreme Court's Hobby Lobby decision, to include the broad religious exemption that is in ENDA in the order the White House is drafting banning discrimination among federal contractors. Yes, they're actually asking the government to allow them to discriminate with taxpayer dollars. Because of that, HRC is publicly saying that an exemption in the executive order is far different and should not be included.

But, while NCLR and some other groups have now said they won't back ENDA any longer with the religious exemption (a brave stance, since many are afraid of HRC), HRC still supports it and is presumably still lobbying Republicans to support it. That sends the wrong message to the White House, implicitly saying that we will tolerate some discrimination.

Let's be honest: If HRC truly still supports the exemption in ENDA, it will be that much harder to keep it in while pushing for a vote in Congress -- and get ENDA passed with Republican support, which it would need -- if the president doesn't include it in the executive order. HRC may want a win on federal legislation, like all lobbying groups, because it brings in dollars, no matter the cost. But the cost of having the religious exemption is too high. After Hobby Lobby, you could even imagine the Supreme Court deciding the same thing on LGBT discrimination that it did in the Hobby Lobby case: that the administration already gave an exemption to non-profit religious groups on some forms of contraception, so why not allow the same for "closely held" for-profit companies?

Tobias Barrington Wolff, the esteemed professor at the University of Pennsylvania Law School who was an advisor to the Obama campaign in 2008 (and got a shout out last week from the president during the White House LGBT Pride Reception), has been very vocal in recent days, speaking out against the exemption. Hopefully the president is listening to Wolff's wise counsel and not to those inside or outside the White House who might be advising him to support religion-based discrimination.