“Was it the same cat?”
That was Trinity’s question in The Matrix, when Neo reported seeing two black cats in rapid succession. In the movie, déjà vu is a glitch that portends a dangerous change in the computer program.
Watching multiple advocacy groups again remove their support for the Employment Non-Discrimination Act (ENDA) has given many in the LGBT community a sense of déjà vu. Some think it portends similar danger for the Human Rights Campaign (HRC), who continue to support the measure, as they did in 2007 when other groups disagreed.
The basic problem, that there will be LGBT people not covered by ENDA, is similar. So is HRC’s response, that it is a good step that helps a lot of people.
But otherwise, no, this is not the same cat.
The original 2007 ENDA included protections for gender identity. Those protections were stripped after the head of HRC said they opposed such non-inclusive legislation. Once it was clear that the legislation would leave the transgender community out in the cold, other groups moved away immediately, leaving HRC to push the bill in the House of Representatives.
The “group” omitted this time are members of the LGBT community who work for religious organizations. That is still half-a-loaf, but it’s the portion all of the groups in question agreed to, if begrudgingly. The religious exemptions causing the current divisions were in the 2014 ENDA when they supported its historic passage in the Senate. The question is now whether those exemptions, in light of the Supreme Court decision in the Hobby Lobby case, will be unworkably broad.
It’s a fair concern, but it’s not clear how the Hobby Lobby decision would be applied to ENDA, or whether the presence of the protections in the legislation would even matter. In his concurrence, Justice Kennedy notes “yet neither may that same exercise [of religion] unduly restrict other persons, such as employees, in protecting their own interests.” Those words provide a ray of hope that an employee’s sexual orientation and gender identity might fall outside the scope of the Religious Freedom Restoration Act (RFRA) as defined by the Hobby Lobby decision. If the current ENDA is significantly thwarted by the new interpretation of RFRA, the religious exemptions in the bill could be the underpinning of that problem, or largely irrelevant.
In short, the ENDA schism in 2014 is about legal prognostication. That’s a very different animal than a debate about political strategy. In 2007, HRC decided that it was OK to move the LGB forward without the T. Since that should not have been a question, there was no chance HRC’s stance was correct. HRC (and I as a local volunteer at the time), deserved the heat they took.
If the religious exemptions in the legislation don’t change the impact of RFRA, then the 2014 ENDA may be the best we can do – not politically, but legally. That makes this a very different cat. In the end, HRC may again have to apologize for how they treated it, but I wouldn’t pile on just yet. This time, they could be right.
