Senate moves forward with Employment Non-Discrimination Act

In a procedural vote Monday, the Senate moved forward on a gay rights bill that would give sexual orientation and gender identity the same workplace protections as race.

Seven Republicans and 54 Democrats cleared the Employment Non-Discrimination Act (ENDA) past its first hurdle, with a vote of 61-30, setting the stage for debate Tuesday and possible passage by week’s end. But while the bill’s supporters quoted Martin Luther King Jr. and hailed the legislation as a common-sense step toward civil rights, critics say it’s not that simple.

The bill would bar employers with 15 or more workers from using a person’s sexual orientation or gender identity as the basis for making employment decisions, including hiring, firing, compensation, or promotion.

Naturally, Christians and other religious leaders have been concerned about the cultural implications of recognizing non-biological genders and with similar state-level statutes that have been used to legally redefine marriage. But that’s ultimately not why many conservatives oppose ENDA.

The bill currently exempts the same religious organizations as those listed in the 1964 Civil Rights Act, including churches. But as Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, said, “It does nothing to protect religious employers whose businesses fall outside of the government's list of approved organizations.”

For example, a for-profit business owner already can’t refuse to hire a Muslim because it could make employees uncomfortable. The same principle applies under the ENDA. But since the issue is as much about conduct as identity, it can directly conflict with a businesses’ worldview-based conduct policies for supervisors—especially those regarding sexual and marital fidelity.

The issue gets more complicated when it comes to the rights of the transgendered. Dress and appearance standards could be the least of employers’ problems. Through existing exemptions, a gym could still specify that locker room attendants be a certain biological sex, although not of a specific sexual orientation. An employer could break the law, though, if he considered the privacy or morale of female employees in preventing a biological male from using the women’s restroom. A Muslim woman’s desire for modesty in the restroom, for example, means nothing under ENDA.

That’s why the bill does not protect equality before the law, said the Heritage Foundation’s Ryan Anderson: “Instead it would create special privileges that are enforceable against private actors.”

ENDA would open up religious business owners to the same expensive lawsuits already facing people in the marriage industry, who don’t want to be forced to participate in same-sex ceremonies, or those whose insurance policies don’t offer coverage for contraception. People could cite grievances for something as vague as being “adversely affected.”

President Barack Obama defended the law by posing a rhetorical question: “Does it make a difference if the firefighter who rescues you is gay?” Most people probably would say no, but the question is not that simple.

“No doubt these are difficult and delicate issues,” Anderson said. “And that is why they are best left to those closest to the decision—not a one-size-fit-all [sic] rule from Washington.”

Sen. Pat Toomey, R-Pa., who supports the bill and same-sex marriage, said the legislation could be “improved” by including protections for religious freedom. Although he said he intends to offer an amendment, he hasn’t done so yet. Sen. Rob Portman, R-Ohio, also plans to submit amendments. And late yesterday, Sens. Mitch McConnell, R-Ky., and Rand Paul, R-Ky., proposed an amendment that would repeal clauses in federal laws that allow workers to be forced to join a union or pay union dues.

The amendments may bog down ENDA’s progress in the Senate, but it likely won’t matter in the long run. The law has little chance of passing the Republican-controlled House—or perhaps of even getting a vote.