A top LGBT priority appears likely to get a Senate vote in the next several weeks. Already 56 Senators have publicly expressed support for The Employment Non-Discrimination Act (S.815), commonly known as ENDA, and activists are working in a number of states, including Arkansas, New Hampshire, Ohio, Pennsylvania, and West Virginia, to sway enough votes to clear the 60-vote hurdle often in place in the Senate for controversial bills.
When this bill advanced out of the Senate Health, Education, Labor, and Pensions (HELP) Committee by a 15-7 vote in July, NRB quickly cautioned Senators that the Committee neglected to address a significant constitutional problem with the bill – namely, ENDA does not uphold the First Amendment freedoms of religious organizations.
In a letter to Senate Majority Leader Harry Reid (D-NV) and Senate Republican Leader Mitch McConnell (R-KY), former NRB President & CEO Dr. Frank Wright declared, “A right engraved in the Constitution, in the very First Amendment, must not be treated lightly. 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 earlier this year, 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.”
NRB is continuing its outreach to Senate offices regarding the First Amendment problems with ENDA.
By Aaron Mercer, Vice President of Government Relations
Published: October 25, 2013