By Harry Knox
4:04 PM EST, December 9, 2013
House Speaker John Boehner has said he would oppose a landmark gay-rights bill, the Employment Non-Discrimination Act (ENDA), because its religious exemption is not broad enough.
But the House speaker has it backward. The current religious exemption in ENDA is already too wide.
For advocates of religious freedom like me, there is a crucial principle at stake: Religious exemptions should never become a tool of discrimination. They should be narrowly tailored to reduce the burden on a person's free exercise of religion. They should not give license to some employers, under the guise of religious liberty, to treat LGBT people adversely in their jobs.
Here's why Speaker Boehner is wrong. The terms of the exemption in ENDA go far beyond prior legislation, including the 1964 civil rights law that covers race and gender. They transform religious liberty from a shield against intrusion on exercising one's faith into a sword for some to carry out prejudice against others. So I call on champions of civil rights in Congress to fix the problem by scaling back the terms of the exemption.
As written, the religious exemption in ENDA allows religious organizations to create classifications of jobs for which they mandate conformity with certain religious beliefs and from which they can forbid people who are — or whom they suspect may be — lesbian, gay, bisexual or transgender. What could this mean?
A hospital with a religious affiliation could institute a "conformity" policy. All frontline health care workers, no matter their training and expertise in the field, might have to swear and sign an oath they attend the worship services of a particular religion, have never been intimate with someone of the same sex and adhere to behavior and appearance norms of their gender of birth. There are towns and cities throughout America where policies like this, enforced at one or more facilities, might bar talented professionals in some jobs from all nearby work in their field.
This part of the expanded exemption might mean that some workers in a given workplace are covered by ENDA, while others, subject to the oath, are not. How unfortunate it would be if a federal law intended to create a uniform standard of equality for the nation's workers, in effect, extended rights so unevenly as to fail its primary purpose.
As written, the exemption might also cost some existing workers their jobs at institutions that put a conformity policy in place, especially workers who refused to sign an affidavit. How tragic it would be for the law, instead of protecting LGBT workers from discrimination, to became a device of oppression.
As a gay man having spent my entire adult life working for local, state and federal measures to limit bias against lesbian, gay, bisexual and transgender people, I find the scope of this exemption unsettling on several fronts. Could I really trust an institution that effectively bars openly LGBT adults from holding certain jobs to treat me fairly?
The exemption also meddles with the definition of religious employers, now settled under federal tax law. It invites new types of businesses to create carve-outs for themselves from federal law, based on claims of religious identity. Why is this disturbing? Because it could jeopardize one of the most hard-fought compromises of the Affordable Care Act and its guarantee of access to contraceptives for millions of American women, regardless of the type of employer. Forging new types of exemptions based on assertions of religious identity is the wrong direction for federal law to go.
Religious liberty is a notion precious to our democracy, closely tied to the First Amendment's guarantee of free exercise of religion. Its integrity is worth fighting for. I have long been troubled that some people of faith invoke religion as a crutch to justify ignorance or dislike of LGBT people. To compound that affront to faith traditions by misconstruing religious liberty as authorizing the denial of opportunity and job status to disfavored people is profoundly upsetting. We can craft a better religious exemption in ENDA that still keeps the bill on course for final passage. Those of us who have labored to pass this bill for 20, 30 and 40 years take seriously our responsibility to try.
Rev. Harry Knox, who lives in Maryland, is president and CEO of the Religious Coalition for Reproductive Choice. He was a member of President Obama's first Council on Faith-based and Neighborhood Partnerships. His email is firstname.lastname@example.org.
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