It appears the legislation we've wanted for years — and years and years and years — is effectively dead in the water. In its current iteration, anyway. The Employment Non-Discrimination Act that was supposed to protect us from discrimination in the workplace will effectively be watered down so much, thanks to Hobby Lobby and the Supreme Court, as to be ineffective on the whole.
Read the statement from the National Gay and Lesbian Task Force Action Fund. In it, Executive Director Rea Carey wrote:
In the last year alone, we have seen a wave of attempted and successful efforts at imposing religious exemptions on issues of reproductive health and LGBT equality on the local, state, and federal level. And it is crystal clear in the week following the Supreme Court’s Hobby Lobby decision that the momentum is building on religious exemptions. Not 48 hours after the decision, Pastor Rick Warren joined other faith leaders in a letter to the president asking that he include a broad religious exemption in the contractor executive order. We cannot be complicit in writing such exemptions into federal law.
As well, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center, Gay & Lesbian Advocates & Defenders, and the American Civil Liberties Union are withdrawing their support for ENDA. Lambda Legal Executive Director Kevin Cathcart, while referencing this joint statement, had this to say:
ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations — including hospitals, nursing homes and universities — a blank check to engage in workplace discrimination against LGBT people.
The loophole essentially says that anti-LGBT discrimination is different — more acceptable and legitimate — than discrimination against individuals based on their race or sex. If ENDA were to pass and be signed into law with this provision, the most important federal law for the LGBT community in American history would leave too many jobs, and too many LGBT workers, without the protection ENDA promises.
The lone holdout, it appears, is the Human Rights Campaign, who told Metro Weekly in an email:
HRC supports ENDA because it will provide essential workplace protections to millions of LGBT people.
What has ultimately changed — since the Hobby Lobby ruling — is the degree to which any number of organizations can claim an exemption, to discriminate. Just a matter of days after the Supreme Court ruling, religious organizations asked President Obama for an exemption to the upcoming executive order that will ban discrimination by federal contractors similar to the Hobby Lobby ruling. Andrew Sullivan spells it out rather clearly. (It's a great blog post: read it).
Why is the Hobby Lobby ruling so unique? Jay Michaelson in the Daily Beast provides a very plain explanation:
Think of religious exemptions as a series of concentric circles. In the smallest circle—call it Level 1—are churches and ministers. Here, almost no one disputes that some religious exemptions are justified.
Now widen the circle to religious organizations: denominations, for example. Here, too, most activists support some religious exemptions, but maybe not as many.
It gets even more complicated on “Level 3,” religiously affiliated organizations.
ENDA had a “Level 3” exemption in it, the same exemption as the Affordable Care Act compromise. Not as far as Hobby Lobby, but far enough for ENDA’s backers to realize that they were playing into the religious right’s hands.
Level 4 is Hobby Lobby: widening the circle even further to include exemptions from private corporations whose owners are religious. According to Slate, this exemption is applicable to 90% of companies in the US.
Here in Tennessee, the Tennessee Equality Project's Chris Sanders asks these seven questions as we look forward, concluding:
What we don’t have time to do is celebrate, blame, or fight with one another. Tennessee gay, lesbian, bisexual, and transgender people in the workforce have very little to shield us and we’ve got to figure out how to change that.
Photo credit: LGBTQNation