The gay community is a key constituency and source of campaign donations for Democrats, and calls to rewrite the most significant gay rights legislation considered in recent years is a major setback for the White House, which had used passage of the legislation last fall as a way to draw a contrast with House Republicans, who have refused to vote on the measure.
But the groups said they can no longer back ENDA as currently written in light of the Supreme Court’s decision last week to strike down a key part of President Obama’s health-care law. The court ruled that family-owned businesses do not have to offer their employees contraceptive coverage that conflicts with the owners’ religious beliefs.
The “Hobby Lobby case,” was led by Hobby Lobby, an arts-and-crafts chain that co-founder David Green has said is run on biblical principles, and Conestoga Wood Specialties, a Pennsylvania cabinetmaking company owned by a Mennonite family.
Signs of crumbling support for ENDA came first Tuesday from the National Gay and Lesbian Task Force, one of several gay rights group that has aggressively pushed Obama to expand gay rights through executive action since the start of his presidency.
Rea Carey, the group's executive director, said in an interview that “If a private company can take its own religious beliefs and say you can't have access to certain health care, it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them. We disagree with that trend. The implications of Hobby Lobby are becoming clear."
"We do not take this move lightly," she added. "We've been pushing for this bill for 20 years."
Separately, a coalition led by the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights said in a joint statement that they also would be withdrawing support. The bill’s religious exemptions clause is written so broadly that “ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people,” the group said, adding later that if ENDA were to pass Congress, “the most important federal law for the [lesbian, gay, bisexual, transgender] community in American history would leave too many jobs, and too many LGBT workers, without protection.”
The Senate approved ENDA with bipartisan support last November, marking the first time federal lawmakers had approved legislation to advance gay rights since repealing the military’s ban on gay men and lesbians in uniform in late 2010. The legislation passed with the support of several Republicans, some of whom had opposed previous attempts to pass the legislation but had decided that the time had come to expand protections to gay, lesbian and transgender workers. But House Republicans have said they will not take up the bill, in part because they believe the bill's current religious exemptions aren't clear or broad enough.
Twenty-one states and the District of Columbia have laws prohibiting workplace discrimination based on sexual orientation, while 17 states and the District also bar discrimination based on gender identity. Hundreds of the nation’s largest companies also have similar bans.
Since the court’s ruling, the White House and congressional Democrats have said that they will seek ways to address the Hobby Lobby decision through legislation.
Senate Majority Leader Harry M. Reid (D-Nev.) on Tuesday called the decision “outrageous” and said “we're going to do something about it” without providing specific details. Sens. Patty Murray (D-Wash.), Mark Udall (D-Colo.) and Richard Durbin (D-Ill.), among others, are working on proposals that are expected to be merged and unveiled in time for a vote as early as next week, senior Senate Democratic aides said Tuesday.
A new, separate push to rewrite ENDA may serve as a useful political tool for gay rights organizations that have used previous election cycles to pressure Democrats to take up legislation important to their concerns. The threat of withholding campaign donations during the 2010 campaign cycle helped push Obama and congressional Democrats to push for repeal of the military's "don't ask, don't tell" policy. And Obama's decision to announce his support for same-sex marriage before his reelection in 2012 also was seen as a nod to the gay community, a reliable and leading source of campaign donations to Democratic candidates.
Carey said her group is also pushing to ensure that Obama does not include a broad religious exemption in an executive order that he is expected to sign soon that will ban discrimination against gay, lesbian and transgender employees of federal contractors. The order is considered the last significant action he is likely to be able to make to advance gay rights without the cooperation of Congress, according to gay rights groups.
But after the Supreme Court's decision last week, religious leaders redoubled efforts to ensure that Obama includes a religious exemption in his executive order.
Despite the new opposition to the bill, the Human Rights Campaign, one of the nation’s largest gay rights groups, said Tuesday that it continues to support the bill “because it will provide essential workplace protections to millions of LGBT people.”
Sen. Tammy Baldwin (D-Wis.), a lead sponsor of ENDA and the Senate’s first openly lesbian member, said Tuesday that she was reviewing the decision of groups to withdraw support for the bill. She noted that the bill’s religious exemption language had been tweaked last year to secure more support from Democrats and Republicans, “and there was clearly discomfort expressed at that point” by gay rights groups concerned that the changes might make it easier for employers to seek religious exemptions.