ENDA’s Religious Exemption

ENDA’s drafters recognized that religious liberty is one of our nation’s founding principles.  The bill protects the First Amendment religious freedom rights of churches to come to whatever conclusion they wish about LGBT people.  Some churches and religious organizations will choose discrimination and some churches will choose inclusion of all of God’s children.  ENDA does not force the choice of the federal government upon any church, and therefore ensures that ENDA will not be struck down someday by the U.S. Supreme Court for violating religious liberties.

Moreover, ENDA’s religious exemption provides advocates with a tool for persuading moderate Republicans and conservative Democrats to join our side.  The current version of the exemption was created by a lop-sided vote of 402-25 when ENDA went to the floor of the U.S. House in November 2007.  ENDA’s religious exemption won the support of virtually every Republican member of the U.S. House of Representatives, including former Republican Speaker Dennis Hastert and current Republican Speaker John Boehner.  The religious exemption also cleared the way for leading conservative Republicans like Paul Ryan – the current Chairman of the Budget Committee – to vote for the entire ENDA bill.

How does ENDA’s religious exemption work?

ENDA’s religious exemption creates a 100% match with the number of religious organizations that also qualify for the religious exemption in Title VII of the 1964 Civil Rights Act. If a religious organization qualifies for the Title VII religious exemption, then it also qualifies for the ENDA exemption.  Rabbi David Saperstein provided the Congressional testimony below explaining how this approach holds three key advantages:

  1. 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.
  2. 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.
  3. 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.

You can read more about the history of ENDA’s religious exemption.

 

Rabbi David Saperstein testifies to Congress in favor of ENDA