Obstacles to legal equality for gay and lesbian Americans are crumbling fast. Congress has repealed the "don't ask, don't tell" policy that prevented gay service members from being open about their sexuality. Nearly a dozen states have legalized same-sex marriage, and a stampede of U.S. senators — including two Republicans — has endorsed marriage equality. Activists are hopeful that the Supreme Court will overturn the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples.
Yet gays and lesbians still lack protection under federal law against being fired or refused employment because of their sexual orientation. That would change with enactment of the Employment Non-Discrimination Act, which was reintroduced in Congress last week. But just as prospects for the legislation seem to be improving, even in the GOP-controlled House, some supporters of gay rights are crying foul about an exemption in the law for religious employers.
At present, 21 states have laws prohibiting employment discrimination based on sexual orientation, and 16 states (including California) and the District of Columbia also prohibit discrimination based on gender identity. ENDA, which bans discrimination on both grounds, would establish a national standard similar to the one that prohibits discrimination on the basis of race, color, religion, sex or national origin.
That federal legislation is necessary has been well documented. In a 2008 survey, 42% of a national random sample of lesbian, gay and bisexual people said they had experienced at least one form of employment discrimination because of their sexual orientation at some point in their lives. Yet enactment has proved elusive, and one concern has been that the bill might force religious organizations to violate their teachings against homosexuality. To forestall such criticism, ENDA exempts from its provisions any "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."
But allowing religious employers to discriminate on the basis of sexual orientation is not comparable to allowing them to prefer employees of their own faith. It's reasonable to allow the Roman Catholic Church to discriminate against Jews and Muslims in selecting priests. But the American Civil Liberties Union and several gay rights groups note that the ENDA exemption would give religious employers — including, in some jurisdictions, religiously affiliated colleges and hospitals — free rein to discriminate against gay and transgender persons even for secular positions such as groundskeepers and physicians. They say they would be willing to live with a more narrowly tailored exemption for religious organizations.
We're not sure any religious exemption is necessary. Under court decisions interpreting the 1st Amendment, religious institutions may choose their ministers without regard to anti-discrimination laws. It would be a shame if such an exemption — especially one that is not very carefully circumscribed, applying only to employees charged with preaching or propagating the faith — became the political price for enactment of ENDA.