Some Real Reasons Not To Support ENDA

Chris Crain comes up with Lambda Legal's analysis of the new ENDA and points out a couple of real reasons not to support it. They key points:

This version of ENDA states without qualification that refusal by employers to extend health insurance benefits to the domestic partners of their employees that are provided only to married couples cannot be considered sexual orientation discrimination. The old version at least provided that states and local governments could require that employees be provided domestic partner health insurance when such benefits are provided to spouses.

In the previous version of ENDA the religious exemptions had some limitations. The new version has a blanket exemption under which, for example, hospitals or universities run by faith-based groups can fire or refuse to hire people they think might be gay, lesbian or bisexual.

The domestic partner benefits exclusion is completely unacceptable. Crain is not so worried about the religious exemption being expanded, but I think he's missing a point.

I'm less concerned about the breadth of the religious exception. Anyone who goes to work for a company controlled by a religious group knows going in that there is a religious purpose behind the enterprise. Even so, it does seem worthwhile to revise ENDA so that again only employers or positions whose primarily purpose is religious are excluded.

This ignores the way the definition of "religious organization" has broadened under the Bush regime. Once upon a time, when we still had separation of church and state, if a religious denomination wanted to run a community-service organization -- hospital, homeless shelter, soup kitchen, what have you -- they organized a separate legal entity that could apply for and accept government funds without conflict with the First Amendment. The tit-for-tat was that the separate entity had to abide by all civil rights laws, including those dealing with religious discrimination. The way the religious right has begun interpreting "religious organization" (with the willing connivance of the Bush administration) has essentially left no public activity untouched -- hospitals, pharmacists, even landlords have cited "religious" exemptions as grounds for bias. I'm not at all comfortable with including that sort of language in a gay civil rights bill.

Let's get back to some Constitutional principles here.