The Employment Non-Discrimination Act (S.815), commonly known as ENDA, advanced out of the Senate Health, Education, Labor, and Pensions (HELP) Committee after a 15-7 vote this week. However, NRB quickly cautioned Senators that the Committee neglected to address a significant constitutional problem with the bill. Specifically, NRB President & CEO Dr. Frank Wright highlighted that ENDA does not uphold the First Amendment freedoms of religious organizations.
“A right engraved in the Constitution, in the very First Amendment, must not be treated lightly,” stated Dr. Wright in a letter to Senate Majority Leader Harry Reid (D-NV) and Senate Republican Leader Mitch McConnell (R-KY). “Ambiguity regarding the rights of religious organizations is likely to stir litigation and to put a chill on one of our nation’s keystone liberties. I urge you not to advance ENDA given this concern.”
Last year, NRB Senior Vice President & General Counsel Craig Parshall outlined NRB’s religious freedom concerns with ENDA in formal testimony before the Senate HELP Committee:
We oppose [ENDA] because… (1) it generally illustrates the kind of unaccommodating approach to religious organizations that was recently rejected by a unanimous decision of the Supreme Court; (2) the insufficient “religious exemption” provisions of this bill would permit a substantial and unconstitutional burden to be placed on religious organizations; and (3) court decisions dealing with “gender identity” type employment discrimination claims indicate that a legal remedy is already available for such claims under existing Title VII law, also subsuming within them numerous “sexual orientation” claims as well.
When ENDA was re-introduced in May, Mr. Parshall asserted, “The current version of ENDA contains the same convoluted, so-called religious exemption language, as in prior years, and that language is an open invitation for endless litigation and paltry protection for religious employers.”
All 12 Democrats on the Senate HELP Committee voted for ENDA, as did Republican Senators Mark Kirk (IL), Orrin Hatch (UT), and Lisa Murkowski (AK). The addition of Senators Hatch and Murkowski as supporters of the bill brings the total to 56 Senators publicly in favor of it. Only three Democrat Senators have not yet cosponsored the bill: Senators Joe Manchin (D-WV), Bill Nelson (D-FL), and Mark Pryor (D-AR). Senate HELP Committee Chairman Tom Harkin (D-IA) indicated his hope that ENDA will be brought to the Senate Floor for a vote this coming autumn.
By Aaron Mercer, Vice President of Government Relations
Published: July 12, 2013