ENDA and Religious Exemptions

Religious exemptions! I’ve written about them before, I might be doing my thesis on them, and they’re in the news again, this time related to the Employment Non-Discrimination Act, which would prohibit discrimination based on gender identity and sexual orientation. The question on the table is, as always, should religious organizations be exempt from this requirement?

The way ENDA is currently written is actually really interesting, because it invokes Title VII. Title VII prevents discrimination based on “race, color, religion, sex and national origin,” and religious organizations are only exempt from the religion part – basically, Catholic schools are allowed to say that being Catholic is a job requirement, but they say that their religion prohibits them from hiring women. (Obviously we’re talking about institutions run by the church that aren’t the clergy, I actually have no idea how that part works but I gather that ordination falls under different rules.)

So for ENDA, it says “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.” If you’re allowed to discriminate based on religion, you’re also allowed to discriminate based on gender identity and sexual orientation.

Maybe that’s not weird, but I find it strange, because the implication is that there’s something about queer people that’s uniquely offensive to religious people, and that this anti-gay sentiment is such an important part of their religious practice that the government can’t infringe on it. Sexist and racist beliefs by religious groups aren’t given the same kind of protection, and anti-gay beliefs in non-religious contexts aren’t either. Atheists who have a problem with queer people are out of luck under ENDA; religious queer people are equally out of luck.

ThinkProgress, in the article linked above, argues that such an exemption is too broad – it’d allow a Catholic hospital to refuse to hire a gay doctor, for instance, which doesn’t seem to serve any theological purpose and instead just furthers discrimination for discrimination’s sake. I think religious freedom claims are definitely stretched too far by the ENDA exemption – after all, whose religious freedom are you protecting? Does the hiring manager’s religious practice really hinge on him or her refusing to hire the qualified gay person? It’s a bit tricky to draw the line between personal conviction and appropriate business behavior, but in this case it’s hard to draw up a convincing theological justification. But I’m also really interested in the implied dichotomy between LGBT people on the one hand and religious people on the other – frankly, I’m not convinced that the line is a firm enough one to merit being written into law, especially given that support for same sex marriage has increased among most religious groups in the past 10 years.

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