By Lisa Keen
The Employment Non-Discrimination Act – or ENDA – has always been a top priority for the LGBT community politically. It’s been around in one form or another for almost 40 years, passed the House once, and nearly passed the Senate once.
Now, as President Obama – the most pro-gay president in history – readies to begin his second term, a Republican-dominated House still makes passage of ENDA extremely unlikely.
Many LGBT activists have pressured Obama in the past to go around the Republican House and issue an executive order barring discrimination in employment at least by contractors who do business with the federal government.
At a routine White House press conference Dec. 12, Washington Blade reporter Chris Johnson asked press secretary Jay Carney whether the president might consider doing that, now that he’s secured his second term. But Carney said the White House has no such plans under consideration. Instead, he said, the White House plans to follow the same path on ENDA as it did on repealing Don’t Ask, Don’t Tell – and that path winds through Congress.
Michael Cole-Schwartz, a spokesman for the Human Rights Campaign, said his organization would continue to press the White House to sign an executive order.
“ENDA is a critically important piece of legislation, and the political reality in Congress is that there is not an immediate, clear path to passage,” said Cole-Schwartz. He said HRC also believes the potential paths through Congress and through executive order – “don’t have to be separate tracks.”
In the 2011-12 Congressional session, the Senate Committee on Health, Education, Labor & Pensions gave ENDA a hearing, and four of five witnesses favored it. The one witness opposed to the legislation, National Religious Broadcasters Association spokesman Craig Parshall, claimed it would have a chilling effect on the right of religious organizations to exercise beliefs concerning homosexuality.
However, Title VII of the Civil Rights Act of 1964 – which prohibits employers from discriminating based on race, color, religion, sex, and national origin – already exempts “religious organizations” and “religious educational institutions” from the mandate concerning religion, enabling such organizations to give preference to employees who share their religion. It does not allow religious organizations to discriminate against employees based on race, sex, or the other covered categories and simply claim the discrimination is religiously-based.
The ENDA bill introduced in this past Congressional session included a “Exemption for Religious Organizations” section, stating: “This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964….”
U.S. Senator Jeff Merkley (D-Ore.) introduced ENDA in the current session of the Senate. In the next Congressional session, the Senate’s first openly gay elected senator, Tammy Baldwin of Wisconsin, will likely sit on that same Senate committee and be a part of ushering the bill forward.
In the Republican-dominated House, where the chief sponsor has been Rep. Barney Frank (D-Mass.), who is retiring, the new most veteran openly gay member of the U.S. House, Rep. Jared Polis (D-Colo.), will take over the chief sponsorship of ENDA.