One version of ENDA that was proposed in 2007 contained significantly narrowed protections for religious entities. The following post from Melissa Rogers does a good job of describing the narrowed protections and many of the related issues. I would add to her thoughts that the narrowed protections would end up excluding most if not all parachurch organizations that have non-proselytization policies (e.g. WorldVision or Catholic Charities), because none of the employees of those organizations have the "primary" duty of teaching or spreading religious beliefs.
I don't know what the political prospects of this particular version of the religious protection in ENDA is, but the mere fact that this version was proposed by ENDA's sponsors suggests that there are non-trivial legislative prospects for protections significantly narrower than those in Title VII. http://melissarogers.typepad.com/melissa_rogers/2007/09/congress-may-so.html A New Twist on ENDA's Religious Exemption Raises Questions and Concerns (Updated) Joseph Goldstein reports on a new twist to the religious exemption in a piece of legislation that would prohibit employment discrimination against gays. It is known as the Employment Non-discrimination Act (ENDA). According to the piece, "[t]he bill, known as H.R. 2015, is scheduled to be debated before the subcommittee this morning." A bill that, if passed, would become the first federal law to prohibit employment discrimination against gays contains a broad exemption for religious organizations. But to qualify for that exemption, religious groups would have to declare "which of its religious tenets are significant" and must be adhered to by employees. Lawyers say this requirement could put pressure on religious organizations to state a doctrinal prohibition against homosexuality in order to continue to legally exclude gay job applicants. "This is something new," a law professor at George Washington University, Ira Lupu, said. The effect of such a law, Mr. Lupu said, would be that "there is no more First Amendment right to be exempt unless you want to tell us that making us hire these people is really in conflict with our religious commitments." . . . If passed, the Employment Non-Discrimination Act would carry a blanket exemption for the hiring practices of religious congregations, as well as schools with a primary purpose of worship. Summer camps, nursing homes, soup kitchens, charities, and other institutions linked to a congregation would not be exempt, unless they made a declaration of significant "religious tenets." It is not clear whether such a declaration would need to be made up front, such as in the form of a disclaimer on a job application form, or could be made in court filings in response to discrimination suits. The latest language for this exemption is news to me, and my initial take is that it raises a range of serious legal and policy questions and concerns. The text of the new exemption is here. It says: In General -- This Act shall not apply to any of the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief. Certain Employees -- For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship. Conformity to Religious Tenets -- Under this Act, a religious corporation, association, educational institution, or society may require applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant. Under this Act, such a declaration by a religious corporation, association, educational institution or society stating which of its religious tenets are significant shall not be subject to judicial or administrative review. Any such declaration made for purposes of this Act shall be admissible only for proceedings under this Act. One of my concerns about this new language is that it would appear to force certain religious institutions to decide and declare what for them is a theological matter. It makes me very uneasy to think about the government forcing religious institutions to decide and declare their stance on theological issues. We aks conscientious objectors to declare themselves so that they won't have to fight in a war, but my initial take is that this seems different. For one, this exemption deals with an institution, not an individual. And thus any statement on these issues will require a judgment by a religious body. To complicate matters, the issue of homosexuality is obviously a delicate and divisive issue within and among religious institutions, and it is one where judgments may change somewhat over time. As the Sun article notes: In many congregations, there are deep divisions about what their religion says regarding homosexuality. Across the nation there would likely be divisions within individual congregations about whether church funds should be used to hire homosexuals. In congregations such as these, the new bill would require a firming up or a rapid formulation of such policies. "These organizations may be perfectly happy with a sort of don't ask and don't tell policy," the general counsel of the American Jewish Congress, Marc Stern, said, "but this may force groups to take one side or the other." (Now, the bill states that any religious group that "has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief" is exempt without a declaration, so assumedly churches and other houses of worship would not have to do so. But other religious groups might have to make a declaration.) Do we really want the government forcing religious groups' hands on these issues? Further, some the legislative language itself sets off alarm bells. The religious group must "stat[e] which of its religious tenets are significant. . . ." Uh, all of them? But seriously, must the religious organizations explain to the government how it gets from sacred scripture to its particular stance on this issue? Perhaps not. But then what kind of statement must it make, and when, and to whom? What must the religious organization do if its position changes? What if organizations have a more complex way of handling these issues than simply saying, "We don't hire gay people due to our religious beliefs"? How much do these kinds of religious organizations have to explain to the government? The story hits on most of my other concerns: That a law would call on a religious organization to make a declaration of "religious tenets" to qualify for an exemption would itself likely come under a First Amendment challenge, lawyers say. Courts have long been deeply hesitant to ask which tenets are central to a certain religion. Over the years, the religious exemption has shrunk in various versions of the bill, Mr. Stern said. In 2001, the bill, as it was introduced in the House, contained a more straightforward exemption: "This Act shall not apply to a religious organization." The newly stated religious exemption in the current version of the bill has drawn the notice of a variety of religious organizations. In a letter sent yesterday to the House subcommittee on health, employment, labor & pensions, representatives of the Union of Orthodox Jewish Congregations of America, the United States Conference of Catholic Bishops, and the General Conference of Seventh Day Adventists said they have "serious concerns" about the current version of the bill "due to its substantial revision of the religious exemption provision." The letter does not go into further detail about objections, except to say "it leaves religious institutions with insufficient protection from the infringement of their religious liberties." At least some of the bill's supporters are trying to suggest that this new language isn't a big deal. "It's my intention to see this bill enacted," the chairman of the subcommittee, Robert Andrews, a Democrat of New Jersey, said in a telephone interview yesterday. He said that in the current version of the bill the religious exemption "is not broadened or narrowed, but restated." I don't think that kind of explanation is going to fly. There needs to be a closer look at this new language and its ramifications. I also would ask the supporters of this language: Do you really think it helps your cause to get the government to force certain religious groups to make this decision? And do you really think this is going to help ENDA get passed? I haven't been following this closely lately, but I thought ENDA had a pretty good chance of passing both chambers in the near future. This would seem likely to complicate matters. For a variety of reasons, my sense is that this legislation should contain a broad exemption for religious groups so as to allow them to come to their own conclusions on this matter in their own time. (By the way, this post does not address a situation where, for example, a religious social service group that receives a government grant makes employment decisions regarding government-funded jobs. That would require a different analysis.) There's more I'd like to say about this matter, but my schedule doesn't permit it. I may update this post later with more thoughts and information. UPDATE: Testimony submitted by Tom Berg and the Christian Legal Society addresses a wider set of questions and concerns about this exemption. It can be found here. September 05, 2007 | Permalink ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [layco...@umich.edu] Sent: Friday, April 10, 2009 3:21 PM To: religionlaw@lists.ucla.edu Subject: Re: Same-sex marriage and religious exemptions Thanks Chip; that's helpful information. Of course it hasn't passed yet, but maybe it will, and with appropriate exemptions. The other way to read that is that it highlights the advantages of doing a deal in Congress instead of in the 50 states. State legislation gay rights tends either not to pass (in red states), or to pass with very narrow exemptions (in blue states). I won't claim that there are no exceptions, but surely that's the dominant trend at the state level. Quoting "Ira (Chip) Lupu" <icl...@law.gwu.edu>: > Doug writes: > > "On the gay rights issues, religious conservatives are pretty much > getting exemptions only within the church itself -- not even their > affiliated religious organizations -- which is to say, they are > getting only those exemptions that no sensible person on the gay > rights side actually opposes." > >> From everything I have heard, no version of ENDA (the bill that >> would extend Title VII to discrimination based on sexual >> orientation) can possibly pass unless it includes the same exemption >> for religious organizations (not just "houses of worship") as the >> current Title VII exemption for such organizations to engage in >> religious selectivity. If that is right, such an exemption will >> include a broad range of religiously affiliated entities (i.e., >> schools, charities, etc, organized for religious purposes). So >> Doug's "pretty much" in the first sentence above may be obscuring >> some very important matters. > > ---- Original message ---- >> Date: Fri, 10 Apr 2009 12:46:30 -0400 >> From: Douglas Laycock <layco...@umich.edu> >> Subject: Re: Same-sex marriage and religious exemptions >> To: religionlaw@lists.ucla.edu >> >> It is patently easier to do one deal than to do >> fifty. And on this issue, it is easier to do a deal >> in a legislature where both Vermont and Alabama are >> represented than to do a deal in Vermont or to do a >> deal in Alabama. Maybe we want to let Vermont and >> Alabama each go their own way on marriage; maybe we >> even want to let them each go their own way on free >> exercise of religion; those are two distinct issues >> different from the political possibilities of deal >> making. >> >> American legislatures have enacted lots of religious >> exemptions, but not many controversial exemptions >> with an organized interest group in active >> opposition. On the gay rights issues, religious >> conservatives are pretty much getting exemptions >> only within the church itself -- not even their >> affiliated religious organizations -- which is to >> say, they are getting only those exemptions that no >> sensible person on the gay rights side actually >> opposes. >> Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
