Abstract
The District of Columbia (D.C.) marked a landmark civil rights achievement in December 2009 when the city passed the Religious Freedom and Civil Marriage Equality Amendment Act. The law’s enactment allowed D.C. to become the sixth jurisdiction to sanction same-sex marriage in the United States. Supporters hailed the law as a victory for lesbian and gay equality, while detractors vowed that their efforts to traditionally define marriage would continue.
Among the most public opponents of the law was the Catholic Archdiocese of Washington, which operates Catholic Charities, a leading service provider to low-income residents in the metropolitan area. The Catholic Archdiocese warned the D.C. City Council that it would sever its professional relationship with the city if the same-sex marriage law passed because same-sex unions are inconsistent with the Church’s core theological teachings. Once the law went into effect, over a year later, the D.C. City Council cancelled the foster and adoption program that the city’s Child and Family Services Agency and the Catholic Archdiocese co-administered for eighty years, citing that the religious organization was no longer eligible to provide services. Weeks later, the Catholic Archdiocese announced that it would no longer offer spousal benefits to its new employees. The political battle between the D.C. City Council and the Catholic Archdiocese remains heated, as the law’s full fall-out is yet to be realized. However, there are two observations from this conflict that should inform lawmakers and policy advocates alike.
The first observation is that Catholic Charities’s choice to cut its employee benefits demonstrates the lengths to which some religious organizations will go to deny lesbian and gay equality. D.C.’s same-sex marriage law itself did not require that Catholic Charities discontinue its employee spousal benefits. Rather, the Catholic Archdiocese chose to eliminate spousal benefits for all of its employees to comply with the Equal Pay Act and Title VII of the Civil Rights Act of 1964, which both were triggered by the same-sex marriage law. The Equal Pay Act requires equal compensation for substantially similar work, and Title VII bans employer discrimination on the basis of sex, both of which mandate equal compensation for employees performing similar work, including fringe benefits. Catholic Charities, therefore, would have been exposed to legal liability if the organization did not extend equal employee benefits to those with same-sex spouses. The Catholic Archdiocese ultimately elected to cut spousal benefits for every new employee rather than to offer the same benefits to their new lesbian or gay employees. In other words, Catholic Charities’ administrative decision hurt all of its new workers — gay and straight alike.
The second observation is that the D.C. City Council elected to carve out a narrow religious activity exemption in its same-sex marriage law, which states: Notwithstanding any other provision of law, a religious society, or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of a marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society’s beliefs.
The Act’s religious organization exemption, related only to marriage activities, strikes a reasonable balance between religious freedom and civil rights. On one hand, the exemption states that a religious organization may refuse to sanction same-sex unions, but, on the other hand, the exemption also implicitly recognizes that civil society may exercise its institutional prerogative to confer benefits to whomever it chooses. Religious freedom and civil rights, in this way, can harmonize to accommodate a plurality of beliefs and interests.
The D.C. law is an exception, however, as many lesbian, gay, bisexual, and transgender civil rights laws fail to strike a reasonable balance between religious freedom and robust discrimination protection. Most notably, the Employment Non-Discrimination Act (ENDA), designed to extend federal employment discrimination protection to gay, lesbian, bisexual, and transgender (LGBT) people, contained a religious organization exemption much broader than the existing Title VII exemption. ENDA’s religious exemption, taking different iterations over fifteen years, begs an important question: why were religious organizations permitted to discriminate against LGBT people but not against other statutorily protected groups?
This comment discusses ENDA’s long history of broad religious exemption and its meanings for LGBT civil rights progress ahead. Part I traces ENDA’s religious exemption transformation from 1994 to present, noting a narrowing of the exemption as the LGBT movement witnessed increasing political success. Part II examines the delicate balance between the First Amendment Religion Clauses, as well as LGBT civil rights and religious freedom, and argues that ENDA’s previous exemptions tipped this delicate balance toward religious over-accommodation prohibited by the Establishment Clause. Part III concludes that the LGBT movement experienced a significant victory with the modified religious exemption in the 2009 version of ENDA, which challenged the conservative Christian bloc’s political and cultural monopoly over LGBT rights’ narrative, and represents the defeat of a potentially dangerous precedent for future civil rights struggles.