Gay-Rights Employment Bill Unlikely to Contain Significant Religious Exemption

November 6, 2013
Polls confirm that two-thirds to four-fifths of Americans oppose employment discrimination based on sexual orientation

Polls confirm that two-thirds to four-fifths of Americans oppose employment discrimination based on sexual orientation

WASHINGTON — A Senate bill to ban employment discrimination against gays and the transgendered is unlikely to contain a significant exemption for religious organizations and individuals, according to a key Republican senator.

Sen. Pat Toomey told TCO Wednesday that his amendment to protect religious employers and organizations from the Employee Non-Discrimination Act had no Democratic sponsors. 

The Democratic-controlled Senate is scheduled to vote on a motion to cut off debate on Toomey’s amendment Thursday, which observers say is unlikely to attract the support of 60 senators.

An attempt to add an even broader exemption to include religious individuals who own for-profit businesses was rebuffed, the Pennsylvania Republican said.

“I was assured there was no chance of success if that amendment was included,” Toomey said in an interview during a break from a Senate Finance Committee hearing.

Sen. Michael Bennet, a vocal supporter of the bill, did not address a reporter’s question if the bill contained an exemption for religious owners of for-profit businesses. The Colorado Democrat referred the question to a spokesman, who did not return an email message for comment.

Sen. John McCain, another supporter of the legislation, said opponents have not discussed a broad religious exemption with him. “Honestly, this is the first I’ve heard of it, so I can’t say,” the Arizona Republican said in an interview off the Senate floor Tuesday.

The likely absence of any significant legal protection for religious employers suggests that supporters of the legislation are seeking a maximalist bill to appeal to Democrats and a handful of Republican moderates.

Supporters of the bill have said it is an historic step on the march to equality. Several have compared it to the landmark 1964 Civil Rights Act that banned racial discrimination in employment.

On Monday, Bennet released a statement that said America is founded on the “principles of liberty, equality and justice.” He added the “bill is in line with Colorado law and the majority of Americans who believe that everyone has the right to earn a living and feel safe and respected in the workplace.”

Polls confirm that two-thirds to four-fifths of Americans oppose employment discrimination based on sexual orientation.

Support for non-discrimination has grown in recent years. In September 1996, the Senate voted 49-50 against a bill similar to ENDA. On Monday, the upper chamber voted 61-30 to limit debate on the bill.

But some opponents who do not object to the bill’s anti-discrimination provisions have expressed the concern that the bill creates new rights.

“Look, I think we need to treat everyone the same and fairly, but the bill is confusing to a lot of employers. It creates special groups of people for non-discrimination, so there’s going to be a lot of litigation,” Sen. John Hoeven of North Dakota said in an interview Tuesday.

Toomey has indicated he would oppose the bill if it contains no exemption for religious employers. He is echoing the line of several religious and socially-conservative organizations who have said the bill’s protections for religious employers are too narrow.

“(ENDA) threatens religious liberty by punishing as discrimination the religious and moral disapproval of same-sex conduct, while protecting only some religious employers,” three chairmen of the United States Conference of Catholic Bishops said in a statement Oct. 31.

“(S)imilar laws in states and cities have already forced other religious non-profits to violate deeply held beliefs or stop providing support and help to their communities,” Jeff Johnson,  an issue analyst with Focus on the Family, which is based in Colorado Springs, wrote in an interview via email.

Brokering the divide between gay-rights and orthodox religious supporters was the stated aim of a clutch of socially-moderate Republican senators.

Senator Kelly Ayotte of New Hampshire and Rob Portman of Ohio sponsored an amendment that received the endorsement of five other Republicans — Toomey, John McCain of Arizona, Orrin Hatch of Utah, Susan Collins of Maine, and Dean Heller of Nevada. Although the Senate passed the amendment by voice voice Wednesday, the measure falls far short of protections that social conservatives sought.

On the Senate floor Wednesday, Ayotte said the amendment would prevent the federal government from denying a government grant or conferring tax-exempt status or any other benefit on a religious organization.  But critics say the amendment would offer no protection to a Catholic school or university that disagrees with an employee’s wish to become a member of the opposite sex, for example.

In addition, the absence of a broad religious exemption could affect religious individuals who don’t want to comply with the law.

Hobby Lobby Stores Inc., a toy-and-crafts chain store based in Oklahoma City, has gone to court to oppose the Affordable Care Act’s mandate that owners of for-profit businesses provide artificial birth control in the health insurance plans they offer to employees. In June, the 10th Circuit Court of Appeals in Denver ruled that the company, whose owner is an outspoken Christian, did not need to pay millions in fines from the federal government for not complying with the health insurance law.

Rep. Jared Polis (D-Boulder) is the lead sponsor of the House bill, which has 195 supporters, according to a spokesman.

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