The devil will be in the details of the religious exemption language of ENDA

6 Nov

When it comes to religious liberty and the separation of church and state, the devil will be in the details of the new ENDA law (just passed Senate; awaiting on House).  Here is how a Fact Checker describes the current Portman amendment embedded over protests from left and right inside ENDA (Employment Non-Discrimination Act):

ENDA Religious Exemption – Fact Sheet

The Employment Non-Discrimination Act (ENDA) includes a broad exemption for religious organizations. ENDA’s religious exemption recognizes that the U.S. Constitution protects certain employment decisions of religious organizations and that some religious organizations may have a specific and significant religious reason to make employment decisions, even those that take an individual’s sexual orientation or gender identity into account. It also acknowledges that gay, lesbian, bisexual and transgender (LGBT) employees of religious organizations should be aware that they could lose their jobs, even jobs that do not serve a clearly religious function, because of sexual orientation or gender identity.

The exemption consists of three parts:

  • A complete exemption for houses of worship, parochial and similar religious schools, and missions
  • A codification of the so-called “ministerial exemption” recognized by many federal courts, exempting positions at religious organizations that involve the teaching or spreading religion, religious governance, or the supervision of individuals engaged in these activities
  • A provision allowing religious organizations, for classes of jobs, to require employees and applicants to conform to a declared set of significant religious tenets, including ones which would bar LGBT people from holding the position

In the third section of the exemption, the declaration of an employer’s significant tenets is not subject to judicial review and is only applicable in proceedings under ENDA.

In practice, this language continues to exempt many jobs with religious organizations. Under the first section of the exemption, for example, a priest or minister is clearly exempt, as well as the church secretary and the administrator of Sunday School programs. Under the second paragraph, the chaplain at a religiously-affiliated hospital and the teacher of canon law at a religious university are also exempt.

Under the third part of the exemption, a religious corporation, association, educational institution, or society may decide to apply its religious tenets to classes of employees. Although this provision gives, as most courts would give, deference to religious organizations in declaring significant religious tenets, it means that ENDA will apply to some positions but not others at these employers. For example, a religiously-affiliated hospital could choose to require all nurses to follow a declared set of significant religious tenets, including avoiding same-sex sexual activity, and be able to terminate a male nurse who they subsequently learn is in a relationship with another man. Similarly, a social services agency run by a religious sect could require its executive director to subscribe to a set of tenets that it declares significant, including one that bars LGBT people from holding the job, but choose not impose the same requirement on its social workers or other classes of employees

The WSJ has an article on the current politics of it.  In short, some want the exemption drawn more narrowly (from the left) while others want it drawn more broadly (from the right, protecting some for-profit businesses as well).  Questions that arise include:

Will the House version adopt this amendment.  If not, will it weaken it or strengthen it?  If it weakens it, how far?  Will it only exempt houses of worship?  Will the exemption be gutted in some way at a future date, especially by executive non-compliance (a growing trend in this administration when it disagrees with existing law)?

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