Honey, I Shrunk the Exemption!

Starting with the 103rd Congress in 1994, various Representatives and Senators have been introducing legislation that would ban discrimination in employment on the basis of "sexual orientation." The bills generally are called the "Employment Non-Discrimination Act" (ENDA). [There is an informative timeline on the Human Rights Campaign website.]

Until now, the bills have included broad exemptions for religious employers. This Congress' version (H.R. 2015) is significantly narrower.

It categorically exempts only those employers that "ha[ve] as [their] primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief."

With respect to religious employers that don't fall within this categorical exemption, the ban on sexual orientation discrimination:

shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.

An additional subsection permits a religious employer to require employees in "similar positions" to conform to those religious tenets that the employer deems significant.

One could plausibly contend that this bill, if enacted into law, would subject to liability a Christ-centered, liberal arts college that disciplined a chemistry professor for engaging in homosexual activity. One could plausibly contend that this version of ENDA would forbid the CLS Center for Law & Religious Freedom from declining to hire an attorney who was unrepentently and consistently engaged in homosexual activity. In each example, one can easily imagine a court concluding that the primary purposes of the college and CLS were not the performance of ritual or the dissemination of doctrine. One can easily imagine a court concluding that the positions in question did not fall within the language in the block quote above.

Whatever ambiguity there might be about the precise scope of the exemption, there can be no doubt the ENDA's supporters intentionally narrowed the religious exemption. I suspect that they did so because they concluded that they might be able to get away with it. I have long suspected that religious exemptions in sexual orientation nondiscrimination proposals are merely concessions to political reality rather than reflective of some principled commitment to religious freedom. In other words, proponents of the homosexual legal agenda are willing to eliminate as much religious associational freedom as they can get away with.