Op-ed: Is ENDA Just History Repeating Itself?
After successes for military integration and marriage equality these past few years, ensuring workplace protection seems to be the next goal for our community. And the Employment Non-Discrimination Act, a bill that had sat idly for the last two decades, recently made strides toward passage.
The Senate version of the bill passed last year and now awaits a vote by representatives from the most unpopular congress in history. While ENDA had never passed the Senate and support for the bill there was seen by some as tremendous progress, having bipartisan support in this particular political climate has a catch — an overly broad religious exemption.
Years ago, even before the Hobby Lobby decision, it became apparent that ENDA's religious exemptions would become a problem. Just turn back the clock to 1993 for an example of how some of the worst of history might repeat.
President Bill Clinton enacted the “don't ask, don't tell” policy, passed as a compromise with Republicans for full inclusion of gay, lesbian, and bisexual service members into the military — they could serve, but just not openly. Clinton used the "all or nothing" excuse of doing something over nothing to justify his implementation of the remarkably flawed policy. It was the result of placating both the tides of progress and the pitfalls of preservation-based conservatism.
Our country and our community suffered through 18 years of military discharges, threats of employment upheaval, and sexual harassment in closed quarters as a result of this newly formed culture of intimidation. In the efforts to make the military more inclusive, it backfired.
After a lengthy federal lawsuit, leadership from President Obama, focused lobbying by LGBT activists like the Log Cabin Republicans, extensive Senate panels with military leaders, and the kicking and screaming of more conservative and moderate members of Congress, this "compromise bill" was relegated to the pages of history. So why are we setting ourselves up to do the exact same thing with ENDA?
House Minority Leader Nancy Pelosi and others are using the same excuse that President Clinton gave 21 years ago to justify passage of a flawed bill. She and others are condemning the "purists" for their willingness to watch this bill die.
If the recent Hobby Lobby contraception ruling by the Supreme Court makes anything clear, it’s that the courts support religious liberty over the rights of individual citizens. This compromise bill will be exploited by corporations. By giving them this loophole to exploit, we will set our movement back in the process of trying to move it forward. If ENDA is passed in its current form, we could be denied a proper employment discrimination bill for as long as two decades to come. That's what you get when you compromise with people like this. That's why this ENDA bill must be scrapped and brought back to the drawing board.
As we fight, LGBT residents of states without employment protections in place may continue to be discriminated against. The current version of ENDA will likely still leave them without protection. Furthermore, employers could take advantage of the religious exemptions loophole to fire more freely and discriminate more unjustifiably.
If our intention is to help residents of states with higher levels of discrimination, then this bill will not make a dent in changing the culture. That's why the onus of change needs to fall on the LGBT communities in these states where employment protections do not yet exist in law.
Right now, workers can be fired in 29 states because of their sexual orientation or gender identity. Changing law at the state level will make it easier to pass a bill at the federal level.
Some states will still resist calls for reform no matter what happens on the national level. That's why ENDA will still be necessary even if most states already have the laws on the books. An effective bill is one that avoids the potential pitfall we have in the overly broad religious exemptions.
Winning this debate means dismantling the talking point that an ENDA-free world equals the preservation of "religious liberty." Though we want to see some progress on this front in Washington, it just isn't wise to settle for a compromise bill that creates more problems.
MICHAEL LATIN is a blogger who can be found on Twitter @michaellatin