Last month’s Supreme Court decision in Burwell v. Hobby Lobby, allowing closely held corporations to opt out of the new health law’s contraceptive mandate based on religious objections, could result in disastrous outcomes for opponents of LGBT workplace discrimination.
As a result of the Hobby Lobby decision, last week several LGBT civil rights groups withdrew support of the Employment Non-Discrimination Act (ENDA), a bill that would provide basic protections against workplace discrimination on the basis of sexual orientation and gender identity. These LGBT advocates contend that the Hobby Lobby outcome will result in a significantly expanded definition of “religious employer.”
Section 6 of ENDA currently has an exemption for religious employers: If the proposed law passes, it would not apply to them. In its present form, ENDA defines “religious employers” based on Title VII of the Civil Rights Act’s interpretation of the designation. As per Title VII, this classification applies to those organizations whose “purpose and character are primarily religious.” That determination is based on “all significant religious and secular characteristics,” including but not limited to “whether the entity’s day-to-day operations are religious” and “whether the entity’s articles of incorporation or other pertinent documents state a religious purpose.”
In the past, many LGBT advocates have found the religious exemption to be problematic, because many people believe it is okay to use their religious beliefs to discriminate against LGBT people. In their view, religious employers qualifying for the exemption would likely use it to intentionally discriminate based on sexual orientation or gender identity. Such an outcome would evidently run counter to ENDA’s overarching goals.
However, it was not until after the Hobby Lobby ruling that some of these advocates decided to take action and withdraw their support of ENDA. As per their reasoning, Hobby Lobby has made it possible for any employer with a religious belief to extend that belief to the operation of their business. In this way, more employers could potentially qualify for the statutory exemption than could before the Hobby Lobby decision.
Consequently, advocates who have withdrawn support of ENDA contend that the potential expansion of “religious employer” will dilute ENDA’s protections for LGBT workers to an unacceptable extent. As a result, they have rescinded their support until the bill is revised to omit the religious exemption.
Undoing significant progress
The move places long-time ENDA supporters in a difficult position. LGBT civil rights groups have lobbied over the last four decades since the introduction of the Equality Act of 1974 to push this legislation through Congress. They finally met with great success in November of 2013 when the bill, which included the exemption for religious employers, passed in the U.S. Senate. Though its passage in the House of Representatives is less certain, this was undoubtedly an important step forward for LGBT Americans.
At the time, advocates lauded the Senate’s ratification as “a huge historic victory.” Their praise was certainly warranted: if eventually passed in the House, the legislation would greatly improve the quality of life for LGBT people in the U.S. Nonetheless, many of the groups that commended the bill’s passage in November now repudiate the proposal in its current form as a result of the Hobby Lobby decision. Their concerns are understandable given the religious lobby’s increasingly loud opposition to preserving civil liberties and advancing LGBT equality.
ENDA is better than nothing
However, it is important to keep things in perspective. A large body of research has consistently documented high levels of discrimination against LGBT people at work. LGBT workers’ limited ability to protect themselves against employment discrimination continues to perpetuate this injustice. At present, only 21 states and the District of Columbia provide protection based on sexual orientation, and only 18 of those afford protection based on gender identity. Enacting a law at the federal level is imperative for those qualified, hardworking LGBT people living in the majority of states that offer them no protection in the workplace. Given ENDA’s unprecedented public and Congressional support, now seems like the best time to make that happen.
Unfortunately it appears that some LGBT movement leaders have become distracted by the religious lobby’s attempts to thwart important equality measures. This loss of perspective is somewhat natural — the fervor of religious opposition to LGBT equality can often be overwhelming. But the movement cannot allow its outlook to become obscured. ENDA is about protecting LGBT workers, not about battling the religious lobby. Engaging in political posturing is not the answer, and a closer analysis of the current situation will show why this is the case.
First, it is not entirely clear that the Hobby Lobby outcome automatically transforms a small business owned by religious individuals into a religious organization, especially when the business has nothing to do with propagating particular religious beliefs. Consequently, an expanded definition of “religious employer” is not inevitable. Neither is it inevitable that such an expansion would result in all “religious employers” discriminating against LGBT workers. More and more members of the public, the legislature, and the judiciary are sprinting to get on the right side of history, so it’s important not to define any particular group by its extremists.
Second, although the ruling is undoubtedly frustrating, Hobby Lobby has not created some new or unknown challenge. The Religious Freedom Restoration Act (RFRA), upon which the decision is based, has been in place for the last 20 years. Its obstructive character does not make it any less vexing for equality advocates, but its recent prominence in the public discourse should not result in a complete derailment from the task at hand. Success requires commitment to priorities, and it is critical to stay the course and not waste valuable resources on overreactions.
Third, as mentioned, more and more people are quickly moving to get on the right side of history. The progress of the LGBT movement over the last decade evidences this to be true. As equality increasingly becomes accepted by society and the legal system, the demise of institutional hatred and bigotry is inevitable. This observation does not invite complacency — there is still significant progress to be made. But a comparison of the current landscape with that of 10 years ago demonstrates the effectiveness of a focused strategy and serves as a reminder to stay on track.
Commitment to priorities, progress
In light of all of this, LGBT advocates should not allow the unfortunate outcome of the Hobby Lobby case to command more power than it deserves. Yes, the use of religion to discriminate in this country is a serious problem that needs to be addressed, but dealing with the religious lobby should not be the LGBT movement’s main priority.
Along the same lines, neither should be passing a perfect ENDA. The history of state protections for LGBT workers is instructive on this point. Many of the state measures that have been enacted initially did not provide safeguards for discrimination on the basis of gender identity. Since then however, most of these state laws have been revised to incorporate protections for transgender individuals. While this was certainly not ideal at the time of their passage, this strategy eventually produced the desired result in the majority of those states. The same would likely be true with respect to passing ENDA with the religious exemption.
Again, the latest critiques of ENDA are understandable. At the same time, there eventually comes a moment when advocates need to take a step back and evaluate whether the cost of perfection is worth the risk to currently unprotected workers. After 40 years of struggling to move forward on this issue, it is likely that moment has arrived. The desire for perfection must yield to practicality in order for progress to be made. LGBT people cannot afford to wait any longer for some form of ENDA to pass. Advocates need to regain perspective and distinguish their disapproval of Hobby Lobby from the real issue at hand.
Andrea C. Anastasi is a Law & Public Policy Scholar from Temple University Beasley School of Law.