In light of the recent Supreme Court of the United States (SCOTUS) decision (read Phil’s earlier piece) regarding the limited religious exemption for Hobby Lobby and Conestoga Woods in regards to the Patient Protection and Affordable Healthcare Act (Obamacare), the National Gay and Lesbian Task Force has decided to withdraw their support for the current version of the Employment Non Discrimination Act (ENDA) that is sitting before Congress. The Washington Post, through their blog, reported on this Tuesday, shortly after the announcement was made.

From the Washington Post:

[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.”

It should be interesting to note that one of the best recognized “activist” groups for LGBT rights is absent from that every growing list of groups that has withdrawn their support of ENDA.  That group being the Human Rights Campaign. Listeners of Lavender Hill know that Corwin has a strong stand against HRC for their push for heteronormalizing of the LGBT community.

ENDA, as it is written right now, contains a religious exemption component. “ENDA’s religious exemption recognizes that the U.S. Constitution protects certain employment decisions of religious organizations and that some religious organizations may have a specific and significant religious reason to make employment decisions, even those that take an individual’s sexual orientation or gender identity into account. It also acknowledges that gay, lesbian, bisexual and transgender (LGBT) employees of religious organizations should be aware that they could lose their jobs, even jobs that do not serve a clearly religious function, because of sexual orientation or gender identity.” This breaks down into three parts (from CivilRights.org):

• A complete exemption for houses of worship, parochial and similar religious schools, and missions
• A codification of the so-called “ministerial exemption” recognized by many federal courts, exempting positions at religious organizations that involve the teaching or spreading religion, religious governance, or the supervision of individuals engaged in these activities
• A provision allowing religious organizations, for classes of jobs, to require employees and applicants to conform to a declared set of significant religious tenets, including ones which would bar LGBT people from holding the position

I own two businesses. I’ve worked in the real world for the better part of my life. I’ve worked fast food, retail, customer service. I’ve done a lot of things to pay the bills. In my experience I have seen the necessity of the accepted idea “We reserve the right to refuse service.” I can even see where certain small businesses, privately owned, may feel that they have the right to refuse service to anyone who represents a violation of their deeply held religious beliefs. What I don’t understand is the resistance to follow federally mandated regulations and laws that are constructed to protect not only the individual, but the business.

I live in Nebraska. There is only one city in the entire state that it is illegal for me to be fired because I am gay. Omaha passed a city ordinance a few years back that added protections for lesbians, gays, and bisexuals to their non discrimination law. Lincoln, Grand Island, and Kearney all three have tried to pass similar ordinances. Lincoln’s was passed, but it was put on hold by the same city council that passed it after a voter petition succeeded in gaining more than enough signatures to require the ordinance be put before the population during the general elections. The city council has not brought it forward for a ballot vote yet.

Though Lincoln does not have such protections, many of the companies I have worked for over the  years do have such protections in their non discrimination policies. In recent years the only exception to that would be when I worked for Hobby Lobby seasonally five and six years ago. Even the current company that I work for has such protections. At this point in my life, I would not work for a company that did not.

Almost immediately after the decision was announced by SCOTUS in regards to the contraception case with Hobby Lobby businesses and organizations across the country began petitioning President Obama and the courts for religious exemptions that could allow them to discriminate against people of color, other religions, national origins, let alone discriminate based on sexual orientation or gender identity. With the hotly anticipated executive order from Obama that would make it illegal for federal contractors to discriminate against the LGBT community in hiring, promotion, and firing of employees many of these companies are federal contractors. There has been hint, mostly rumor, that some small businesses might use the SCOTUS ruling to allow them to refuse service to individuals that are perceived to be “different” from those business owners’ religious beliefs.

I still maintain that privately owned businesses, in cities/states that do not have protections for the LGBT community in their non discrimination policies/laws, have the ability to refuse service to LGBT people. This means that a bakery specializing in wedding cakes can refuse to make a cake for a same sex wedding if that bakery is in a city/state that does not have such protections. This also means that a landlord or rental agency can evict a tenant that they perceive to be gay under the same legal circumstances. This does not mean that a privately owned business can refuse to provide their services to a black man, a Jew, a woman, or an elderly or disabled person. Those situations are covered by federal protections.

A grey area you say? No. An opportunity. When someone is refused services because they are or are perceived to be gay, lesbian, bi, transgender, etc then that person has the right to sue.  Such a suit may lead to legal precedent in that city/state that could lead to the addition of protections for LGBTQ people to local or state (or even federal) non discrimination laws.

Phil Kessler is one of the hosts of Lavender Hill on KZUM in Lincoln, NE. KZUM is Nebraska’s first and only community radio station. Lavender Hill is perhaps the only LBT/SOGI news and talk program on Nebraska radio, locally produced or otherwise. The opinions expressed in this op-ed piece or his alone and do not reflect the opinions or beliefs of his co-host, KZUM – its programmers, employees, underwriters, or board of directors – nor do they necessarily reflect those of the producers and hosts of programming on the Pagan-Musings Podcast Channel and contributors to the PMPChannel.com blogsite.

Tune in every Sunday at 11am Central for Lavender Hill with Corwin and Phil on KZUM-Lincoln/KZUM-HD.