Why CFI Is Suspending Its Support for ENDA

July 11, 2014

This past fall, the Center for Inquiry was among dozens of organizations that urged the United States Senate to approve the Employment Non-Discrimination Act (ENDA), which would bar employers from discriminating against lesbian, gay, bisexual, and transgender (LGBT) individuals nationwide. Currently, in 29 states employees can be terminated for their sexual orientation; in 33 states they can be dismissed for their gender identity. This is unacceptable.

When the Senate approved ENDA 64-32 on November 7, 2013, we were delighted.

But it has since become clear that any celebration was premature, as ENDA had one crucial, fatal crack.  And that crack has been widened into a gaping chasm by the Supreme Court.

The ENDA bill, S. 815, was only able to pass the Senate because its sponsors inserted language to exempt from the law “religious employers” — including religiously affiliated universities, hospitals, nursing homes, and other non-profit organizations. CFI opposed this language, but, with some reluctance, supported the broader bill because we believed it marked a historic opportunity to expand protections against discrimination to lesbian, gay, bisexual, and transgender (LGBT) individuals. Even with its religious exemption, the proposed law still would have protected most LGBT individuals because the exemption did not apply to for-profit corporations.

Then, on June 30, 2014, the Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. that closely held for-profit corporations (which employ over half of all Americans) have, under the Religious Freedom Restoration Act (RFRA), a right to refuse on religious grounds to provide contraceptive coverage in employee health care plans, which had been mandated under the Affordable Care Act.

What this means is that not only would religiously affiliated non-profit outfits receive an exemption from the current version of ENDA — and they will no doubt use it — but for-profit corporations could conceivably seek and receive the religious exemption as well. Thus, the historic opportunity to expand protections against discrimination to LGBT individuals would likely provide little protection against discrimination for LGBT individuals, since as much — if not most — of the discrimination they face stems from religious objections.

More broadly, the Hobby Lobby decision has highlighted growing conflicts over the scope of religious exemptions. CFI opposed the Court’s ruling in Hobby Lobby and is now urging President Barack Obama to reject pressure — which unsurprisingly came from religious leaders a mere 48 hours after Hobby Lobby — to include a broad religious exemption in his upcoming executive order protecting LGBT people who work for federal contractors from discrimination. 

As has been noted by Rea Carey, executive director of the National Gay and Lesbian Task Force Action Fund: “How can we demand that a woman have coverage for reproductive healthcare at a company but support a bill that allows a lesbian cafeteria worker in the religiously affiliated hospital next door to be fired from her job?”

Even worse: how can we accept a religious exemption in a historic LGBT rights law that could allow even for-profit corporations to ignore anti-discrimination laws? 

The answer is that we simply cannot.

Earlier this week, several national organizations withdrew their support for the current version of ENDA, including the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal; National Center for Lesbian Rights, the Transgender Law Center, and the National Gay and Lesbian Task Force.

The Center for Inquiry now joins them, suspending our support for ENDA until the exemption is either greatly narrowed or scrapped altogether.

Presently, federal law does not allow religiously affiliated organizations or for-profit corporations to discriminate in employment based on race or gender. Discrimination based on LGBT status should be just as illegal. LGBT Americans deserve full protection from unfair dismissal and discrimination, and it is unacceptable that a landmark piece of legislation designed to protect them from such actions could actually leave countless LGBT workers completely unprotected. We cannot and must not accept broad religious exemptions from prohibitions of discrimination in federal law simply to receive a sliver of equality. Indeed, such broad religious exemptions are a direct threat to true equality and a secular, constitutional government. 

As the debate on ENDA continues, the Center for Inquiry will settle for nothing less than a strong federal law that protects from employment discrimination all LGBT individuals – including those applying to and working for religiously affiliated non-profit organizations and for-profit corporations operated by religious believers.