In a historic vote yesterday, the Senate passed the Employment Non-Discrimination Act (ENDA), which outlaws workplace discrimination on the basis of sexual orientation or gender identity. First introduced in 1994, when the legislation failed to pass the chamber by a single vote, ENDA succeeded in securing enough support from Republicans to pass after adopting an amendment by Rob Portman. The Ohio senator’s amendment strengthens the bill’s existing protections for religious and religiously affiliated organizations, specifying that government entities cannot retaliate against groups exempted from the law.
Protections for religious organizations have become a standard part of gay-rights legislation; they are typically included in anti-discrimination legislation and bills recognizing same-sex marriage. But for groups like the U.S. Conference of Catholic Bishops, those contained in ENDA are not enough. "The bill’s religious freedom protection," the conference wrote in a letter distributed to each member of the Senate, "covers only a subset of religious employers, and as a result of recent litigation, is uncertain in scope." Conservative religious organizations and thinkers are sounding the alarm, saying the legislation poses a dire threat to religious liberty. Drawing on exemptions contained in the Civil Rights Act of 1964, the bill's religious-liberty provision ensures that the law does not apply to institutions like churches or to religiously affiliated universities or nonprofits. Another amendment offered by Senator Pat Toomey of Pennsylvania would have expanded the universe of exempted groups to include for-profit businesses. It failed by a vote of 43 to 55.
While ENDA is unlikely to make it past the Republican-controlled House, its passage symbolizes how far and how precipitously gay rights have advanced in the last 17 years. Twenty-one states and 140 municipalities passed their own anti-discrimination laws protecting gays, lesbians, and transgender people. On Tuesday, the Illinois legislature passed a marriage-equality bill the governor has promised to sign, bringing the tally of states recognizing same-sex marriage to 15.
When it comes to this issue, conservatives are resigned to defeat. The response from major religious organizations and thinkers? Shifting focus from stopping the tide of social change to exempting themselves from it.
"Religious liberty" is the next big front in the culture wars.
"A consensus is emerging on the right that the most important goal at this stage is ... to secure as much liberty as possible for dissenting religious and social conservatives while there is still time," writes Rod Dreher in the September/October cover story of The American Conservative magazine, "Does Faith = Hate?" While some conservative intellectuals like Princeton's Robert George—considered by some the most influential Christian thinker in America—see the battle between gay rights and religious liberty as a zero-sum game, activists like Maggie Gallagher, founder and former president of the National Organization for Marriage, say traditionalists must fight to be tolerated in the new era of gay rights.
The courts have been one vehicle for this growing movement. Under the banner of the First Amendment, conservative legal groups have filed lawsuits arguing that same-sex marriage and anti-discrimination laws violate their religious liberty. In an upset, the New Mexico Supreme Court recently ruled that a Christian photographer who refused to shoot a same-sex wedding was not exempt from the state's Human Rights Act, which covers sexual orientation. Health care is another arena in which conservatives have sounded the religious-liberty alarm. Three major lawsuits challenging the Affordable Care Act’s contraception mandate on religious grounds are currently climbing through the justice system.
Grafting religious protections onto existing legislation is another way conservatives have tried to gain back ground. Richard Garnett at the University of Notre Dame Law School sees room for compromise. He and a group of several legal scholars, which includes both supporters and opponents of same-sex marriage, have advised state legislatures in ten states—including New York, New Jersey, Maine, and Maryland—in crafting religious exemptions for bills enacting same-sex marriage and nondiscrimination protections for LGBT people. "It makes sense moving forward in a relatively peaceful way to include exemptions on the assumption that they're not going to be used very often," Garnett says. "Our group supports a 'live and let live' approach."
William Eskridge, a professor of law at Yale University, notes that "most gay-rights leaders and progressives favor religious exemptions for religious institutions." While the horror scenario of a priest or pastor being forced to perform a same-sex marriage or a church being forced to hire a gay, lesbian, or transgender employee springs up occasionally in the public debate, Eskridge says this is a canard. "No one I know of is in favor of having state pressure on religious institutions to perform them they do not recognize as part of their tradition," he says.
The real debate, Eskridge and Garnett say, is whether and to what degree religiously affiliated institutions like schools or churches and non-religiously affiliated, for-profit companies should be exempt from non-discrimination legislation. Should religiously affiliated adoption agencies that receive government funding be allowed to turn away same-sex couples? Should bakers, photographers, and musicians be able to refuse to provide services at a same-sex wedding?
In current practice, the answer to these questions depends on the scope of both the protections extended to gays, lesbians, and transgendered people as well as the breadth of the religious exemptions included. Currently, a patchwork of 160 state and municipal anti-discrimination laws provide varying degrees of coverage. Some states like Arizona and Montana prohibit discrimination only in employment, and only for state employees. Others like New York and Massachusetts cover all employment as well as "public accommodations" like housing or medical facilities. New Mexico's Human Rights Act has been interpreted as prohibiting for-profit companies from refusing services to gay couples celebrating a marriage.
The deeper question in the debate over religious liberty raises is whether sexual orientation and gender identity should be classified and protected in the same way race is. No one today makes the argument that a for-profit employer should be able to deny services to blacks or Asians; the public consensus has become that racial discrimination deserves no place in society. It is religious conservatives' great fear that moral opposition to homosexuality and same-sex unions will assume the same status.
That is the goal of some gay-rights supporters who think objections to homosexuality and same-sex unions are ultimately based on irrational hatred for gays and lesbians. Wayne Besen, a gay-rights advocate and founder of Truth Wins Out, says exemptions for religious institutions are “an attempt to rationalize discrimination.” “They’re saying they want freedom of religion but what they’re saying freedom of religion means freedom from those who aren’t religious,” he says. “They’re arguing for a parallel set of laws.” Besen says he fears the religious-liberty protections create room for the very sort of discrimination laws like ENDA are trying to prohibit. “You can invoke religion anytime and that’s a big mistake,” he says. “This exception creates another form of discrimination.”
Activists like Gallagher have argued forcefully that sexual orientation is not akin to race—and should not be treated as such under the law. “Skin color does not give rise to a morality,” Gallagher wrote in a 2010 paper in Northwestern University’s law journal. The Heritage Foundation, a conservative think tank, released a report in advance of the ENDA vote delineating ways in which the law poses a threat to religious liberty. The report’s author, Ryan T. Anderson—a supporter of “ex-gay” therapy that seeks to change sexual orientation—stresses that, unlike race, sexual orientation is behavioral and malleable. “Unlike race, sexual orientation and gender identity are usually understood to include behaviors,” he writes. The report quotes scholars who say sexual orientation can be changed. Arguments like Anderson’s may hurt the religious liberty cause more than anything; as public opinion has come to view sexual orientation as an immutable characteristic and a defining feature of identity, such views have come to be viewed as motivated by animus against gays and lesbians.
Ultimately, Besen points out, nondiscrimination comes down to a question of tolerance. “People are going to have to deal with people that may not agree with them,” he says.