Senators voted 61-30 Monday (Nov. 4) to invoke cloture and bring the Employment Non-Discrimination Act (ENDA), S. 815, to the floor for consideration. The roll call – with all but one Democrat and seven Republicans voting in favor – means the Senate almost certainly will hold a floor vote that seems destined to gain the measure's passage.
Speaker of the House John Boehner delivered some encouraging news to ENDA's foes, however, when he affirmed on the same day his opposition to the bill.
President Obama has endorsed the legislation, but it seems doubtful the House will give him the opportunity to sign it into law.
ENDA would make discrimination based on "an individual's actual or perceived sexual orientation or gender identity" illegal in such areas as hiring, firing and compensation in both the private and public workplaces. The measure would treat "sexual orientation" and "gender identity" in a fashion similar to other federally protected categories, such as race, gender, age and religion. "Sexual orientation" normally encompasses homosexuality and bisexuality, while "gender identity," or transgender status, includes transsexuals and cross-dressers.
The proposal's opponents cite various reasons for seeking its rejection, with the danger to religious liberty among them. Some of ENDA's foes point out the bill's exemption for religious organizations fails to protect all religious employers.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC), which has been expressing opposition to the proposal since the 1990s, says the legislation not only subverts the free exercise of religion but promotes a perspective on sexuality that conflicts with that of Christianity.
"Though the bill makes a narrow exemption for explicitly religious institutions and employers, ENDA undermines the Constitution's guarantee of religious freedom by preventing many employers with religious objections to homosexual and transgender behavior from conducting their business in accordance with the dictates of their faith," said Andrew Walker, the ERLC's director of policy studies, in an interview published Nov. 4 on the blog of Denny Burk, associate professor of biblical studies at Boyce College in Louisville, Ky.
While the ERLC agrees "sexual orientation should not be a contributing factor in most employment situations, we cannot conclude that it shouldn't be a contributing factor in every situation," he said. "We cannot agree that the government's interest in creating this non-discriminatory environment is more important than the free exercise of religion and speech guaranteed by the First Amendment."
Language in the bill that bans actions that "adversely affect the status of the individual as an employee or as an applicant for employment" could enable a person to claim his status "has been adversely affected by the mere presence of a Bible on an employer's desk," Walker said. "We are deeply concerned by the potential chilling effect this language will have on the ability of religious employers to conduct their personal lives," as well as their businesses, according to their faith.
Even a stronger religious exemption will not solve some of ENDA's problems, according to the ERLC, which agrees all employees are entitled to respect.
ENDA "is problematic at its root," Walker said in a written statement to Baptist Press.
"We aren't trying to impose our particular worldview when we oppose ENDA," he told BP. "We oppose ENDA because it conflicts with a Christian understanding of human flourishing. We can't, in good conscience, support legislation that serves to only confuse our fellow citizens.
"ENDA eradicates the healthy pursuit of a healthy pluralism by banishing certain beliefs about sexuality, namely Christian beliefs, from the public square."
Tony Perkins, president of the Family Research Council, voiced disappointment at the Senate's vote. ENDA, he said in a written release, "would increase litigation, diminish religious liberty, and create a new federal mandate on businesses based on sexuality. The law would not allow businesses, including schools and daycares, to take things into consideration when they think it is appropriate."
The speaker of the House also expressed concern about lawsuits, with spokesman Michael Steel saying ENDA "will increase frivolous litigation and cost American jobs, especially small business jobs," according to Roll Call, a Capitol Hill newspaper.
Advocates for lesbian, gay, bisexual and transgender rights applauded the Senate's action. Chad Griffin, president of the Human Rights Campaign, said ENDA's "time has come, and we're not going to stop fighting until it is passed once and for all."
While the Senate has never passed ENDA in previous congressional sessions, the House approved the bill in 2007. With President George W. Bush opposed to the measure, the Senate failed to vote on the measure that year. In fact, the only previous Senate vote on ENDA came in 1996, when it failed by 50-49.
The seven GOP members who voted for ENDA Nov. 4 were Sens. Kelly Ayotte of New Hampshire, Susan Collins of Maine, Orrin Hatch of Utah, Dean Heller of Nevada, Mark Kirk of Illinois, Rob Portman of Ohio and Pat Toomey of Pennsylvania. All 30 "no" votes came from Republicans. A Democrat and eight GOP senators did not vote.
A similar House bill has 193 cosponsors.
Tom Strode is the Washington bureau chief for Baptist Press.
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