Another Likely End for ENDA—Or Will It Return Even Stronger?

It appears as though the
federal Employment Non-Discrimination Act (ENDA)
may be dead again. This legislation—outlawing employment
discrimination on the basis of sexual orientation or gender
identity—has died
more times than the average comic book character.

The last time it died, it was amid a fight over whether to
include gender identity to protect transgender workers. Supporters
and sponsors of ENDA agreed to strip out the transgender
protections to increase the likelihood of legislation passing. This
caused a rift among civil liberties and gay activists groups who
balked at the omission. Despite the “protection for some is better
than protection for none” argument and increasing support from
Republicans, it died in 2011.

Introduced again in 2013 in the House by Rep. Jared Polis
(D-Colo.) and the Senate by Sen. Jeff Merkley (D-Ore.), ENDA made
it farther along the road to passage than it ever has. It passed
the Senate in April of last year, even drawing support from the
likes of Sen. John McCain (R-Ariz.).

But now it looks like it’s going to die again, not at the hands
of Republicans or religious conservatives, but at the hands of gay
and civil rights groups. ENDA excludes religious organizations and
non-profits from its rules and in the wake of the Hobby Lobby
ruling, groups are now withdrawing their support for the law, the
National Gay and Lesbian Task Force and the American Civil
Liberties Union among them. The Human Rights Campaign (HRC) is
still supporting ENDA, just as they did during the kerfuffle over
whether to included transgender workers. They kind of have to—ENDA
is their baby, essentially. Despite having their logo plastered all
over the gay marriage debate, they’ve always been really more about
fighting employment discrimination.

The Supreme Court decision on Hobby Lobby has been tossed out
as an explanation or excuse, but that logic doesn’t exactly follow.
The majority ruling, based on the Religious Freedom Restoration
Act, argued that the government failed to pursue the “least
restrictive means” to achieve its aims of providing access to
contraceptives by requiring employers pay for them. It doesn’t seem
at all likely that, presuming the government could argue it has a
compelling interest in stopping employment discrimination, an
anti-discrimination law wouldn’t pass a “least restrictive means”
test.

Chris Geidner at BuzzFeed (before you dismiss the
source, Geidner does significant amount of reporting on legal
issues affecting the gay community) suggests that this sudden shift
isn’t an implosion, but rather a belief that shifting attitudes
toward gays, lesbians and transgender people mean
even stronger legislation could be introduced and passed:

The real question is what the bill will look like when
introduced in the next session of Congress. Will it only focus on
employment, or will it include additional areas like public
accommodations, housing, education, or lending? And, regarding
today’s debate, will it include a streamlined religious exemption
or will it continue building on this year’s exemption? (None of
this even gets into Republicans’ support for the bill, and whether
their support — from key congressional supporters like Sens. Susan
Collins and Mark Kirk and Rep. Ileana Ros-Lehtinen to the American
Unity Fund and Log Cabin Republicans — is contingent upon the
religious exemption remaining as is.)

Even some of the other organizations still supporting today’s
ENDA, like the National Center for Transgender Equality and Freedom
to Work, signaled to BuzzFeed that next year could be different
with regard to the religious exemption.

While Freedom to Work’s Tico Almeida continues to support ENDA,
as passed by the Senate, he said of the group’s work to lobby for
ENDA this year that “increasing the numbers of co-sponsors of ENDA
this year increases the chances of a stronger bill getting
introduced next year.” When asked if getting “a stronger bill”
included seeking a more narrow religious exemption, Almeida said
that it did.

Support for antidiscrimination laws that protect gays and
lesbians
is high, according to polls, and actually has been for years.
The opponents tend to be the religious for religious reasons and us
libertarians for thinking that “freedom of association” actually
still applies even when we think the outcomes are
reprehensible.