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Organizing Priorities: The Problem with ENDA and Burwell

Copyright © 2016 Michigan State University. Amy L. Livingston and Anna Kurhajec, “Organizing Priorities: The Problem with ENDA and Burwell,” QED: A Journal in GLBTQ Worldmaking 3.1 (2016): 127–137. ISSN 2327-1574. All rights reserved. On July 8, 2014, the American Civil Liberties Union (ACLU), Gay and Lesbian Advocates and Defenders (GLAAD), Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center issued a joint statement withdrawing their support for the federal Employment NonDiscrimination Act of 2013 (ENDA).1 ENDA would prohibit discrimination against lesbian, gay, bisexual, and transgender workers in hiring, promotion, termination, and other aspects of employment by some private and all public employers in the United States. Many iterations of ENDA have been introduced to Congress since 1994 and the latest, adopted by the Senate (but not the House) in 2013, contains a controversial religious exemption: “The 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.”2 The ACLU et al. noted in their joint statement of withdrawal that the religious exemption provision “has long been a source of significant concern to us.”3 However, ENDA’s religious exemption had not been enough of a cause for concern to warrant these organizations’ withdrawal of support until after the U.S. Supreme Court issued its ruling on Burwell v. Hobby Lobby on June 30, 2014.4 In their joint statement, the ACLU et al. claimed that their initial concerns about ENDA, which they acknowledged “could provide religiously affiliated organizations . . . a blank check to engage in workplace discrimination against LGBT people,” were intensified by the “misreading” of Burwell by “opponents of LGBT equality . . . as having broadly endorsed rights to discriminate against