Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at the boutique law firm of Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. From 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives. This is Part 2 of a three part series: 3 Ways to Improve ENDA Advocacy.
Today, Rep. Barney Frank (D-MA) and Rep. Ileana Ros-Lehtinen (R-FL) are introducing the bipartisan Employment Non-Discrimination Act (ENDA) of 2011. The bill prohibits most employers from discriminating against workers based on sexual orientation or gender identity. But ENDA's reach does not extend to churches, religious non-profit organizations or religious schools.
Indeed, ENDA's religious exemption provides advocates with a tool for persuading moderate Republicans and conservative Democrats to join our side. As we continue pushing for ENDA's enactment in 2013 - as opposed to 2015, 2017, or even later - I propose that we should out-and-out brag openly about ENDA's broad and bi-partisan religious exemption.
There are strong policy and constitutional reasons for ENDA's religious exemption. ENDA's drafters recognized that religious liberty is one of our nation's founding principles. Therefore, ENDA will allow TV Pastor Joel Osteen's church to refuse to hire gay camera operators and Mega-Pastor Rick Warren's Saddleback Church will be legally allowed to fire bisexual janitors. The business school at BYU can refuse tenure to a transgender professor and St. Mary's Catholic High School can demote the lesbian principal. The evangelical World Relief charity can fire its lesbian accountant and Catholic charities can deny promotions to its gay case manager. Not one of these churches, religious schools, or faith organizations has to worry about ever facing an ENDA lawsuit.
As stated above, ENDA's broad religious exemption could also help the bill garner additional Republican support in the future. The history of that clause demonstrates how.
When the House Labor Committee held a mark-up for ENDA in mid-October of 2007, the Republicans bashed the bill's original religious exemption, which I agree was unclear and poorly written. After the mark-up, we re-wrote ENDA's religious exemption to be significantly clearer and we decided we would offer the new exemption as an amendment by Rep. George Miller (D-CA) when ENDA eventually moved to the floor of the U.S. House of Representatives.
Rep Dennis Hastert
In late October 2007 - not long after we had finished the re-write of the religious exemption - our staff on the House Labor Committee was contacted by the office of Republican Congressman Dennis Hastert, who had been the Republican Speaker of the House from 1999 until the beginning of 2007. Hastert had gone from being the most powerful member of the House just one year earlier to being just an ordinary Congressman - in the minority - and with no official Republican leadership position.
When we received the call from the Republican staffer proposing a deal on ENDA, Hastert had already announced publicly that he would retire from politics at the end of that two-year term. Rumors were circulating that he might leave Congress even earlier than that, i.e., only halfway through his term.
Hastert's staffer told us that if we would abandon the version of ENDA's religious exemption that had gone through the Committee's mark-up, and replace it with a clearer version that was sufficiently respectful of religious liberty, Mr. Hastert was open to voting in favor of the overall ENDA bill on final passage.
What the Republican staffer did not know when he called is that we had already decided on our own to do just that - independent of the offer from Mr. Hastert. But we were still surprised and even a little skeptical of this offer. Could the same Republican Congressman who once voted to prevent same-sex couples in the District of Columbia from adopting children have so dramatically changed his mind that he now secretly favored ENDA and other equality legislation?
I told my colleagues that I knew of an openly gay staffer for Mr. Hastert. I had also heard that Hastert had no personal animus against gays and lesbians; his anti-LGBT voting record was just based on his crass political calculations.
I figured it was at least plausible that the former Republican Speaker's upcoming retirement from politics was finally giving him the freedom to come out of the closet as an ally of equal treatment under the law for gays and lesbians. Maybe he was even seeking some sort of redemption by voting for ENDA right before leaving Congress.
We decided to give Hastert's staff a private preview of the religious language for ENDA. We were not willing to negotiate with a lame-duck politician like Hastert, but we did not see the harm in showing him our finished work product if it might sway his vote towards ENDA.
Several days later - surely after sharing the text with all of Republican House leadership and possibly even lobbyists for conservative organizations - Hastert's staff called back and privately gave us Hastert's endorsement on ENDA's new religious exemption. The staffer could not guarantee how Mr. Hastert would vote on final passage, but he promised that the former Speaker would vote in favor of Rep. Miller's amendment creating the new ENDA religious exemption. He would also encourage his Republican colleagues to do the same.
Indeed, when ENDA reached the House floor in early November of 2007, Hastert joined every single member of Republican leadership in voting in favor of Rep. Miller's religious amendment for ENDA. The vote was a lopsided 402-25. The current Republican Speaker John Boehner, current Majority Leader Eric Cantor, and current Republican Whip Kevin McCarthy, as well as all other prominent Republicans affirmed ENDA's religious exemption.
But in the end, Mr. Hastert waffled and voted against the overall ENDA bill. It was one of the last votes he took in his long political career. He quit Congress just a little over two weeks later. I was disappointed that our prize fish for ENDA had gotten away.
Rep Paul Ryan
However, a significant number of Republicans did support final passage. Notably, Rep. Paul Ryan of Wisconsin - the rising superstar of Republican House leadership - voted for ENDA in 2007. This is the same man who the Republican Party selected just two months ago to give the live television rebuttal to President Obama's 2011 State of the Union address.
Rep. Paul Ryan is no centrist, and far from a fringe-player. But he is both young and smart. At just barely over 40 years-old, Rep. Ryan may yet have another 30 or 40 years in national politics, perhaps at even higher levels than his current rank of Budget Committee Chairman. In ten or twenty years, will he run for President or Vice President?
Surely Paul Ryan has read the polls strongly trending in favor of support for equal rights for LGBT Americans, especially among younger voters. He knew that a vote against ENDA in 2007 might hurt his political career several decades later. Contrast that with current Speaker John Boehner, who has crossed 60 years-old and likely does not have any higher to climb in politics. The calculation weighing an ENDA vote now against future political plans is quite different for each man.
However, without ENDA's broad religious exemption, there is no way that Rep. Paul Ryan - a devout Roman Catholic - would have voted for the overall bill. As one Republican staffer told us the day after that vote, "By fixing the religious exemption, you made it a lot harder for our guys to vote "no" because there was not a whole lot left for us to complain about."
We Shouldn't Be Afraid to Brag
Now that the Republican leadership - at the highest levels - has voted for and affirmed ENDA's religious exemption, we should use that very provision to court moderate Republicans - as well as conservative Democrats who are still holding out - and persuade them to swing our way on ENDA.
In fact, a new national organization called Catholics for Equality provides a model for this type of ENDA advocacy. Under the leadership of Executive Director Phil Attey, just yesterday the new Catholic advocacy group circulated legislative packets to every Catholic member of Congress - regardless of political party. Their position paper in favor of ENDA specifically notes: "ENDA includes broad religious exemptions and does not apply to our church, nor any of our privately funded church organizations and programs." (emphasis added).
These are the types of reassurances that will persuade undecided members of Congress that they can support workplace fairness for LGBT Americans as well as religious liberties for their churches at the same time. We should not be afraid to brag about that.
Please join me tomorrow on the Bilerico Project for the final chapter of "3 Ways to Improve ENDA Advocacy." You can also read Part 1: Overcoming Fear of Transgender Americans on Capitol Hill.
Read the whole series
3 Ways to Improve ENDA Advocacy: Overcome Fear of Trans Americans
3 Ways to Improve ENDA Advocacy: Religious Exemptions
3 Ways to Improve ENDA Advocacy: Take the Fight to the States