Guest Blogger

3 Ways to Improve ENDA Advocacy: Religious Exemptions

Filed By Guest Blogger | March 30, 2011 9:30 AM | comments

Filed in: Politics
Tags: Employment Non-Discrimination Act, ENDA, religious exemptions, Tico Almeida

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.

Tico-Almeida2.jpgToday, 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 SpeakerHastert.jpg- 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 225px-Paul_Ryan%2C_official_portrait%2C_111th_Congress.jpglive 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

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Are you seriously celebrating the fact that you got played by an opposing Congressman?

And you want to base "strategy" on that failure? WTF?

Hastert voted for your weakening amendment, and STILL voted against the bill.

There may be exemption arguments to make and wonderful little DC anecdotes to tell, but this is not one of them.

With strategies like this, it's no wonder even some exemption-riddled ENDA isn't law.

There should be no religious exemption for church organizations operating under a government contract or using public funds. Thus, if the Salvation Army is running a soup kitchen with city funds, there should be no exemption that lets them fire the gay chef making the soup. Same for Catholic Charities operating under public funds for adoptions (let the lesbian social worker keep her job).

Absolutely...there should be NO exemption for churches, religious non- profits (especially) nor religious schools which receive federal monies.....period.

You don't give any argument other than political bargaining for a religious exemption. Is this one of those redundancy amendments to emphasize how the law will be enforced when weighed against religious freedom? There will be instances in which this can be used to fire queer people in secular positions with religiously exempt employers.

Kathy Padilla | March 30, 2011 1:12 PM

As has been noted several times previously - if you're going to be given the privilege of blogging here, there is some responsibility to respond to commenters. That is the nature of a blog - if you don't wish to respect the conventions of this format - you should consider publishing in a different venue.

Tico has informed me that he will be working long days at his law firm this week because he has to draft a legal brief on behalf of workers who have been cheated out of overtime payments that they are legally owed. He is reading the comments and plans to respond, but his day job is requiring his attention right now. :)

wow, he would hardly be the only one...I can think of one on a controversial subject recently, and another who seems to throw something over the wall pretty every day, sometimes several times in a day...and that is even without thinking about it...

Kathy is absolutely correct. I have been doing some serious multi-tasking today, and as a result have not been able to respond to comments just yet. I started the morning up on Capitol Hill listening to Rep. Barney Frank’s press conference about ENDA’s introduction, and then catching up with various friends and colleagues from NCTE, NGLTF, Catholics for Equality, HRC, etc. I got back to my office around lunch time, and as Bil just said, I have been doing the work that pays my bills. (Three cheers for law school debt! Only 20-something more years of payments), The bottom line is that I apologize to all of the readers for not responding to comments more quickly. Kathy, good call. Seriously.

The commenter “oddboyout” asked whether I have an “argument other than political bargaining for ENDA’s religious exemption.” I do. I believe in ENDA’s religious exemption, very deeply.

I wrote above: “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.”

So I suppose here I have to confess to being one of several of ENDA’s drafters mentioned in that sentence (but it was only certain parts of the bill that I drafted or co-drafted – Chai Feldblum, for example, wrote various parts of it in the 1990s – there have been lots of cooks in this kitchen).

I believe that ENDA’s current religious language is the correct language. It is correct because it protects the First Amendment religious freedom rights of churches to come to whatever conclusion they wish about LGBT people. Some churches will choose discrimination and some churches will choose inclusion of all of God’s children.

I believe the choice should be made by each church according to its own religious teachings, and then we can choose based on their decision whether or not we want to attend that church or support it through our donations. But ENDA should not force the choice of the federal government upon a church. To do so would be to violate the constitutional rights of the people who make up that church, and if Congress tried to do that, I am confident the US Supreme Court would strike down that application of ENDA in a 9-0 vote with even the progressive Justices voting for the church over ENDA. I believe the religious exemption that we wrote protects ENDA from getting struck down by the Court.

In response to “PETE”: ENDA’s religious language does not address – in either direction – the issue of religious organizations that take federal funds. That is another statute all-together. That statute is enforced by the US Department of Labor, whereas ENDA enforcement goes through the EEOC. I’m not going to try to guess at the current or proposed policy in this area of law because I don’t have any experience or knowledge on this beyond reading a few newspaper articles. Turning back to ENDA, the religious exemption says that churches and religious groups can’t get sued in federal court in a lawsuit alleging violations of ENDA. It says nothing about organizations that take federal funds.

Finally, in response to the anonymous “Guest2” – the post above clearly says that when Hastert’s staff called us, we had already finished writing what we believed was the correct religious language for ENDA. We had already presented it to members of Congress who get to make the decisions on issues like this, and those members of Congress agreed that our language was a huge improvement on what was there before – which was confusing and poorly written. (No offense to whomever wrote it – but that’s my opinion).

I also wrote above: “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.” Hastert endorsed what we were going to do anyway.

Now I've gotta get back to work. See you all tomorrow. Same time, same place. Saludos, Tico

Kathy Padilla | March 31, 2011 9:07 AM

Thank you, Tico.

I'll bring my concern from your first post to this thread.

Since this bill is going nowhere & it's just an "organizing tool" - we should ask for a full civil rights bill instead of the incrementally watered down enda.

Whatever limits on our enfranchisement place upon ourselves here is where the next round of bargaining down begins. And - if we end up having to bargain down from full equality - doesn't it make for a stronger position to have more items to bargain with?

Why should we organize for less than what we need? How does that send the right message to legislators regarding the needs and desires of the community?

It would give an opportunity to bargain on the scope of coverage for the entire community rather than agreeing preemptively that covering all lgbt people is problematic. That's a message we need to stop reinforcing.

That you are even talking about "Not (being) willing to negotiate" with a lame duck Congressman is pure ego and tells me you're being way too clever by half. Why not do the right thing, speak truth to power, and let the chips fall where they may -- rather than let a specious bill become law and have the public believe that LGBT persons are protected.

By virtue of our obsession with the "separation of church and state," the I.R.S. maintains that the tax exempt status of religious organizations amounts to a public subsidy and therefore prohibits churches from partisan political activity and even purports to silence pastors in our own pulpits. If that's the rule of thumb, and tax exemption is indeed a public subsidy, then by extension these same organizations are essentially public institutions. If our tax dollars are subsidizing them, then I'll be damned if they should be allowed to poison the hearts and minds of kids all across America and ruin the lives of their LGBT workers.

The "religious exemption" makes ENDA little more than a weak-kneed gesture to hate in the name of God. The bright line between church and state is clearly drawn in the wrong place. While preaching hatred, discrimination, and violence against LGBT folk may be protected speech under the first amendment, the legal fiction of "person-hood" afforded to all corporations requires that they serve a public good -- at least in California and I see no socially redeeming purpose for the hatred and pain being dished out by our modern day scribes, Pharisees, and false prophets.

So let them preach poison if they choose, but we sure as hell shouldn't have to pay for it with tax exemption subsidies.

This is another instance where a "hands off" policy does NOT constitute neutrality or respect for religious diversity but rather amounts to a flaccid endorsement of intolerance and retributive injustice and twists Constitutional logic in the same way as the Supreme Court's absurd ruling that an organization that was chartered by the United States Congress is (or was) directly subsidized by municipalities all across the country -- namely the Boy Scouts of America -- is a private religious organization.

Tax-exempt religious organizations by IRS standards are public institutions and we participate in them as much by turning our backs and walking away as we do by attending their services or quietly underwriting their lies and vitriol with tax exemptions. I don't think we can or should have it both ways.

Preach hate - pay taxes.

It's my understanding that the religious exemption is along the same lines of the CRA, and we can't expect much better than that.

I do take issue with this:

ENDA’s religious language does not address – in either direction – the issue of religious organizations that take federal funds.

Yes, but it doesn't help make your point when you cite an organization that does take federal funding in your post. BYU participates in federal student aide programs, benefiting directly from tax dollars, and that's the same sort of money used to impose CRA and Title IX rules on schools.

Obviously, that's outside of ENDA's scope, but maybe we shouldn't be so willing to let anything that says it's a religion or a religious organization do whatever it wants? If the reason to talk up the religious exemption is crass political calculation, then that's one discussion. But I think your defense of the religious exemption itself (in the comments) is based on the idea that homophobic discrimination is just not as bad as other forms of discrimination.

@ Kathy Padilla – I’m going to answer your question first because I’m afraid you might yell at me again. ;-) I kid.

In seriousness, you and I agree for the second time in a row. We are on a roll. I think it might well be an interesting strategy if one member of Congress introduced an omnibus LGBT equality bill as an organizing tool, in addition to Rep. Barney Frank’s very correct strategy of also introducing ENDA as an organizing tool. It would be interesting to see which members of Congress sign onto both, and which members only choose one or the other. The downside, though, is that if ENDA gets a lot more co-sponsor than the omnibus bill that would actually create unhelpful political perceptions about the viability of an omnibus bill. But let’s have that discussion this afternoon on this blog…

Also, several people are really fired up about the tax issues, as compared to the federal employment lawsuit issues, which is sorta interesting to me as an employment lawyer. Here, I have to admit that I do not even know how to do my own, quite simple taxes. Nor do I have profound thoughts on US tax policy.

@Alex Blaze – you ask a good question about Title IX. I will think it over. But in the meantime, let me posit the following additional Title IX question for everyone to discuss. To review, Title IX does not allow gender discrimination at the educational institutions that receive federal funds. And based on the US Supreme Court’s precedent Price Waterhouse v. Hopkins, many federal courts have know extended gender protections to cover transgender plaintiffs. See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1193-94 (9th Cir. 2000); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Lopez v. River Oaks Imaging & Diagnostic Group, 542 F. Supp. 2d 653 (S.D. Tex. 2008); Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008); Glenn v. Brumby, Civil Action No. 1:08-CV-2360-RWS (N.D. Ga. 2010). I presented those cases, where the transgender plaintiff wins in each one under a gender or sex stereotyping theory of discrimination, in chronological order.

So here is the question for discussion: Should LGBT advocates write to US Secretary of Education Arne Duncan, who interprets and enforces Title IX, and ask him to issue an official memo to all school and universities in the United States, informing them that Title IX includes protections for transgender students? Congress would not need to get involved at all. It could help a lot of transgender kids who get bullied and worse at school. And it would be interesting because if it happened, then transgender students would have stronger protections in schools than gay and lesbian students. So, should that be something the community organizes around? I don’t know… please discuss.

Now, I have to politely excuse myself and go back to writing a legal brief for my day job. However, please come back to Bilerico this evening at 7 PM EST when my new blog-post “My New Blog-Post is Dropping” is dropping!

Heh. It’s actually just the final installment of “3 Ways to Improve ENDA Advocacy.”

Cheers, Tico

Kathy Padilla | March 31, 2011 1:07 PM

“The downside, though, is that if ENDA gets a lot more co-sponsor than the omnibus bill that would actually create unhelpful political perceptions about the viability of an omnibus bill.”

If the downside of demanding more is that we might be compelled to accept the lesser option already introduced……I’m not seeing a downside. The only way to truly know where we stand is to introduce an omnibus bill. As has been said by Rep. Frank about voting on ENDA previously – it’s a valuable exercise to see where we have to improve our efforts (paraphrase).

From what I'm hearing - this may not be an academic question going forward.

@ Kathy -- I have been hearing the same thing.

You and I agree that it is a good thing.

So what about Title IX, transgender students, and Education Secretary Arne Duncan?

Kathy Padilla | March 31, 2011 3:13 PM

I think that the admin needs to propagate this policy throughout all agencies - especially the EEOC. The administration has already accepting the standard in HUD's new policies - and several staffers in other agencies have already done the groundwork internally.

Tactically - if some of the reticence is due to transgender inclusion and purported lack of education on the issue - you defuse that going forward as that coverage will already have existed for some time - and several federal agencies will have done public education. And we'll have had that national coverage via policy - and - gasp! the sky, she did not fall.

I've been suggesting this to some admin members for quite a while - they appeared receptive to the discussion.

Kathy Padilla | March 31, 2011 3:15 PM

on the issue = on passing the omnibus or enda legislation