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ENDA’s Religious Exemption
Rabbi David Saperstein provided the Congressional testimony below explaining ENDA’s religious exemption:
- Consistency and Reliability: Since 1964, there has been a religious exemption in Title VII. Since 1972, it has contained the current language of the exemption. ENDA uses Title VII’s definition of a religious organization, so that if an organization is exempt from Title VII’s religious discrimination prohibitions, it will be exempt from ENDA’s prohibitions. Claims by some that this exemption goes beyond Title VII are simply erroneous. Since ENDA creates no new tests for determining which religious institutions are exempt from its provisions and instead adopts the longstanding exemption of Title VII, it will greatly reduce confusion among employers, employees, policy makers, and judges.
- Broad Based Support in Religious Communities: The decision to use the Title VII religious exemption in ENDA is also supported by a wide range of religious groups. The U.S. Conference of Catholic Bishops, the General Conference of Seventh Day Adventists, and the Union of Orthodox Jewish Congregations issued a joint statement supporting the exemption the last time this exemption was voted on in 2007, although they did not take a position on ENDA itself. Yet in their endorsement of Section 6, they wrote that they “believe this language provides an indispensable protection of the free exercise rights of religious organizations and strongly support its inclusion in ENDA.” Similarly, a wide range of national denominations and faith groups support ENDA itself – including this exemption. The endorsement of so many of our nation’s major religious bodies across religious and ideological lines, all in agreement that ENDA’s religious exemption properly protects religious institutions, should weigh heavily with this committee. Amendments, including “carve outs” or other forms of broadening the exemption, could likely break apart the broad-based consensus and should be rejected. Further, it might well lead to conflicting interpretations of the Title VII exemption itself.
- Broad-Based Political Support: This carefully crafted compromise enjoys widespread support from the civil rights community, the legal community and from Congress. This exact language has been considered by this body before. In 2007, 402 members of this House – Republican and Democrat alike – voted for the religious exemption language that Chairman Miller proposed in an amendment to ENDA on the floor of the House. The current version of ENDA, H.R. 3017, contains the religious exemption that passed on the floor two years ago with the support of Minority Leader Boehner and other leadership of the Republican Party including Reps. Cantor, Blunt, Pence and the Ranking Member on this Committee, John Kline, among members of the leadership on both sides of the aisle.