Why do we need exemptions, exactly?
And, actually, that’s a good thing. Because the Senate added more religious exemptions to this version of ENDA than it has had for the nineteen years it has been kicking around in the Congress. The religious exemptions it had were different than the religious exemptions granted to any other federal legislation, and they were crazy then. The additional ones essentially gut the law…
First, let’s talk about existing anti-discrimination laws. Federal law (and many state laws) bans discrimination in public accommodations based on race, religion, national origin, or gender. That means that entities and services that are offered to the public (retail stores, rental establishments, service establishments, educational institutions, recreation facilities and service centers) whether publicly and privately owned, cannot refuse the use or purchase of the service to a person because of their race, their religion, their national origin, or gender. Similarly, federal law bans employers with 15 or more employees from making employment decisions based on the person’s race, religion, national origin, or gender.
The Civil Rights Act doesn’t provide for religious exemptions. The courts have generally held that a “ministerial” exemption exists: positions at religious organizations that involve the teaching or spreading religion, religious governance, or the supervision of individuals engaged in these activities are exempt, but that’s it. Employers who to have a religious belief that interracial marriage is wrong can’t fire someone just because they found out the person is married to a member of a different ethnic group. The owner of a restaurant with religious beliefs about race can’t refuse to serve someone because of their race. The owner of a grocery store with religious beliefs about other religions can’t refuse to sell food to someone because they aren’t a member of his religion.
This all makes sense. When you register a business, get a business license, and open your doors to the public, you need to allow law-abiding members of the public who are willing to come spend money at your place of business do that.
ENDA says the anti-discrimination rules don’t apply to:
- Any employee in any position at all at an actual house of worship, a school owned or run by a religious institution, and anything defined by the institution as a “mission.”
- The aforementioned ministerial exemption (which has never been explicitly codified into law, as the courts were the ones who came up with it), anyone whose job is to teach or spread the teaching of the church, is involved in enforcing the rules of the religion, or anyone who supervises people doing those things.
- Any class of job designated by a religious institution within any business or activity which is owned or controlled by the religious institution, as being subject to a declared set of significant religious tenets, whether the business is run for nonprofit or profit-making purposes.
The first one is a pretty big departure, because previous generations of lawmakers and numerous court cases have all held that for supportive, non-religious jobs at churches and religious schools (such as janitors, cooks, groundskeepers) and religious institutions couldn’t be denied to someone because of their race, national original, religion, or gender.
The middle one isn’t too bad, but it also isn’t necessary, since the courts came up with that exemption on their own and after nearly 50 years of case law it’s pretty well established. Even if I think it is occasionally applied over-broadly in the case of teachers at religiously aligned schools.
The last one is completely insane. Especially when you realized that most hospitals in this country are owned and run by religious groups. Even though they are run by religious groups, most of them have been purchased as investments by those groups. As investments, they are run as profit-making operations, and generally can only make those profits because they receive a lot of money for state, local, and federal governments.
Such as here in Washington state, where now about half of all hospitals and clinics which receive much of their funding from taxpayers, are now technically owned by Catholic institutions. That’s just one church, it isn’t the only one.
Under ENDA, all of those hospitals and clinics could suddenly declare that Nurse is a classification that must follow a declared set of tenets, and then start firing all the gay and lesbian nurses. They could declare that Lab Technician is such a classification, or any other job. And ENDA would give the blessing of federal law to those rules.
Churches and church-affiliated institutions buy all sorts of businesses and run them as for-profit operations. That doesn’t make the business a church or mission, it’s an investment. And it should abide by the same rules as all other businesses.
The only reason that any religious exemptions were in ENDA when it was introduced in 1994, was as an enticement to get some moderate lawmakers to at least take a look at it. In 1994, the majority of the American public told pollsters that discriminating against gay people was okay with them. Public attitude has shifted, with a clear majority now thinking that such discrimination is not acceptable. There is no need to entice moderates to vote for it.
But the whole idea is an odd one. Earlier this year there was a lot of press about a flower shop that refused to sell a gay couple flowers for their wedding. The shop owners had known the men were gay for the entirety of the previous 10 years that they had happily accepted money from one of the men. They knew that they were providing him with flowers to give to his boyfriend. It can be argued that they aided and abetted the entire romance that led up to the wedding.
When they refused to sell, the state attorney general went after them, not under Washington’s brand new marriage equality law, but under a much older state law against discrimination, which includes sexual orientation.
So a few lawmakers rushed to introduce a bill exempting businesses from anti-discrimination laws if they discriminated for religious purposes. A Seattle reporter called an aide to one of the sponsors and posed this question: “The new law would exempt businesses from the entire anti-discrimination law, so what if the owner of the only grocery store in a community starts refusing to sell food to some customers because he says it is against his religion to sell to Jewish people, or Asian people, or old people, or gay people? How will those people eat?”
The aide responded, “I guess they’ll have to grow their own food.”
That story hit the internet, and after the typical waffling and backpedaling and denials, about half the sponsors of the bill withdrew their support.
We do not live in a theocracy. The constitution (and a rather large number of other documents written back in the day, especially from Thomas Jefferson and James Madison) prohibits the government from favoring one religion over another. Your exercise of your religious beliefs are protected, but so is everyone else’s. That includes those of us who don’t believe that homosexuality is a sin.
There’s an old saying, “Your right to extend your fist ends just before it hits my nose.”
Similarly, anyone’s right to exercise their religion ends when it causes harm to another person. Having to live around people who believe differently than you does not cause you harm. Having to live knowing that some of the people believe differently than you does not cause you harm. Watching them buy a house, choose who to marry, go to work, and all of those other things while living a “lifestyle” that you believe is wrong, does not cause you harm.
The bigger question is: why do we need religious exemptions to every legal right extended to gay people? I can understand the ministerial exception: a minister or someone in a similar position needs to be hired on the basis of the church’s religious beliefs. I get that. If a church believes the homosexuality is wrong, and you’re gay and trying to get a job as a minister at that church, you ought to know it isn’t going to be a good fit.
But applying for a janitor position in a business that happens to be owned by a religiously-affiliated institution? Or applying for a nurse job at a hospital that is operated jointly by a religious institution with taxpayer subsidies? Or trying to rent an apartment? Trying to add your newly legally-married spouse to the company insurance roll, just like any other employee? Or trying to buy anything from a store that’s open to the public?
If we reversed the situation on any of these, if we said that the applicant was a straight person applying for the job or the apartment or adding their spouse, and the employer/business owner in question was gay and belonged to some theoretical church that believed not being gay was wrong, would you think they gay business owner should legal have the right to refuse to hire a heterosexual applicant simply because the applicant was straight?
So, here’s the thing. ENDA does not, despite how the media usually shorthands it, extend non-discrimination policies to gay people. Gay people are not mentioned at all. It says that “sexual orientation and gender identity” cannot be the basis of discrimination. That means that heterosexual people can’t be discriminated against just because they’re straight. It means the bisexual people can’t be discriminated against just because they’re bi. It means the homosexual people can’t be discriminated against just because they’re gay. It means transsexual people can’t be discriminated against just because they are trans. It means that non-transsexual people (the clinical term is cisgendered, but most people outside the trans community don’t know what that means) just because they aren’t trans.So, please, explain to me why a religious exemption should apply to any of that?