The end of ENDA

ENDA—the Employment Non-Discrimination Act—is dead for this session of the US Congress. That’s actually not news at all: Republicans declared the bill would never even come up for a vote in Committee, much less in the whole US House of Representatives. Even so, the bill’s finally dead because the good guys won’t play Republicans’ games any more.

ENDA would, if passed by Congress and signed by the President, provide protections for LGBT workers against discrimination in employment. That’s a very important goal considering how many US states offer NO employment or other civil rights protections for LGBT people. ENDA was first introduced 20 years ago, in 1994.

The version of ENDA passed by the US Senate in November of last year—with 10 Republican Senators voting for it—included a HUGE religious loophole, far bigger than applies to the protections contained in the Civil Rights Act of 1964. Instead, it has the far broader religious loophole normally applied to specifically religious institutions (like a church) to allow them to discriminate based on their religion. To put it in perspective, organisations are not allowed to engage in racial discrimination because of their religious beliefs, but under the ENDA loophole, they could discriminate against LGBT people.

This has taken on a LOT more significance in the wake of the Hobby Lobby ruling: For-profit corporations are demanding the same religious loopholes to laws that genuine religious organisations get, simply because their fundamentalist owners claim their companies have “sincerely held religious beliefs”. In the wake of the ruling, fundamentalist leaders have demanded a huge religious loophole in the Executive Order that President Obama will soon issue barring discrimination against LGBT employees by businesses contracted to do work for the US Government (federal contractors).

So, most major national LGBT organisations have now dropped their support for ENDA. The National Gay and Lesbian Task Force Action Fund announced it was ending its support for ENDA, and Executive Director Rea Carey wrote an OpEd further explaining their reasons for that. Later, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights and Transgender Law Center, issued a joint statement announcing they were withdrawing support for ENDA [a PDF of the statement is available from the ACLU].

Among the few remaining supporters is the Human Rights Campaign, whose ways I have often found inscrutable. The National Center for Transgender Equality also still backs the bill, but will fight to narrow the religious loophole: “NCTE has long pressed to narrow ENDA's overbroad religious exemption, and will continue to vigorously oppose any attempt to cloak discrimination of any sort under the guise of faith. That is contrary America's values, including our tradition of religious freedom," as the organisation’s director of policy, Harper Jean Tobin, told Talking Points Memo.

Apart from HRC (whose motives for support I frankly don’t understand), the few organisations still supporting ENDA are apparently doing so only to use it as a lobbying and organising tool, which is fair enough. The bill can’t go anywhere in this Congress, so it makes sense for some of the good folks to use it as a way of building support for the new version that will be introduced in the new Congress next year. Chris Geidner of BuzzFeed suggests three reasons for the change in direction on ENDA, though he does get one thing wrong: It’s definitely not a “fight”, just differing tactical approaches.

The larger point here isn’t that ENDA has a religious exemption—all federal civil rights legislation does (whether or not I think that’s reasonable or rational is another matter entirely, and not relevant to this discussion). The issue here is simply that fundamentalists are demanding a religious exemption big enough to drive a truck through, and that’s unreasonable and unacceptable.

In the long run, the advancement of society will one day make this sort of legislation unnecessary. But just as the USA is decades away from becoming a truly “post-racial” society, so, too, it will be decades more before anti-gay prejudice goes away enough so that such laws aren’t needed. Until then, the USA needs to enact nationwide legislative protections, and ENDA—without the gaping fundamentalist religious loophole—is the best way of achieving that (although amending the Civil Rights Act of 1964 has been suggested as another way). At the moment, however, it’s looking like it’ll become law after society has already moved on from its anti-gay prejudices, and that’s the real pity in this whole mess.