Earlier this week, President Obama signed an executive order prohibiting federal contractors from discriminating against gay, lesbian and transgender employees. To the relief of LGBT-rights supporters — and the dismay of some conservative religious groups — companies with religious owners seeking contracts with the feds are not exempted.
For gay-rights advocates, it’s an initial win in what will be a prolonged battle. With the dominoes falling for marriage equality across the country — just since January, courts have struck down gay-marriage bans in 15 states — social conservatives have given up trying to stop the spread of gay rights; instead, they’re looking to opt out under the banner of “religious liberty.” Last month’s Supreme Court ruling in Hobby Lobby, in which the Justices found that “closely held,” for-profit corporations have religious-freedom rights, has only emboldened this effort.
At the same time, as Molly Ball at The Atlantic has pointed out, it has opened a rift among the major gay-rights groups about the best counter-strategy. It’s a race against time. With public support for gay rights rising steadily, the days in which society will countenance discrimination against LGBT people are numbered. For advocacy groups, the goal is to stave off attempts to curtail protections for queer folk until that window closes.
Well before the Hobby Lobby decision was issued, LGBT rights groups settled on a plan. However the Court ruled, they would downplay the decision’s significance. Having carefully cultivated support among faith leaders — helping to make the case that marriage equality and nondiscrimination are not just for us non-believers — the major gay-rights groups did not want to set up a showdown between religion and LGBT rights. “The idea was to distance the ‘religious liberty’ movement from LGBT rights,” says a source with close ties to the negotiations. “Let’s not provide our opponents with a roadmap for how to bring claims against us using the Hobby Lobby decision.”
But on decision day, only the Human Rights Campaign (HRC), the largest LGBT-rights group in the country, stuck to the game plan. When the ruling was released, the HRC issued a statement that, while lamenting the decision’s implications for women’s reproductive health, characterized the ruling as a narrow one. Pointing to language from Justice Samuel Alito’s opinion saying that religious practice should not be used as a cloak for discrimination, the HRC reassured that “the Court is clear that Hobby Lobby should not be read to open up questions about [its] applicability to corporations with religious owners.” The HRC’s statement also pointed out that the Justices had declined to hear a New Mexico case in which a photographer was penalized for refusing to provide services at a gay wedding.
The other gay-rights groups, however, struck a more alarming note. While they also stressed the narrowness of the Court’s ruling, they warned that its decision could have devastating consequences. The National Center for Lesbian Rights said that the decision “has potentially harmful implications.” Lambda Legal, the largest legal-advocacy group for LGBT rights, said the scope of Hobby Lobby would be limited “only if we continue making the case for LGBT equality and collaborating within a broad, inclusive movement against the use of religion to discriminate.”
The rift soon widened. Since Obama took office, the movement has pushed to pass the Employment Non-Discrimination Act (ENDA), which would forbid employers from discriminating against gay, lesbian and transgender workers in both the private and public sector. Obama’s executive order, which the president only took up once the legislative prospects for ENDA seemed nil, only covers employees of federal contractors. ENDA currently includes an exemption for religious groups. But shortly after the Hobby Lobby decision, all the major gay-rights groups except for the HRC — Lambda; NCLR; the American Civil Liberties Union; Gay & Lesbian Advocates & Defenders; and the Transgender Law Center — pulled their support for the bill.
According to Jenny Pizer, law and policy director at Lambda Legal, the right-wing response to the ruling called for taking a harder stance on ENDA. “We’ve seen right-wing legal groups, especially Christian legal groups, presenting a view of the law that would permit a lot of discrimination,” Pizer says. “This fierce, adverse response means that it’s much more important that statutory protections for LGBT people be clear so they can accomplish their purpose even in the face of heightened legal and political challenges.” In other words, Hobby Lobby made compromise more dangerous.
In a sense, this is a costless move for most of the gay-rights groups. ENDA, after all, is not going to be passed so long as Republicans control the House. But for leading gay-rights group HRC, which has connections on Capitol Hill to an extent the other gay-rights groups do not, abandoning support for ENDA has the potential to damage relationships with lawmakers and faith leaders alike. “There’s never been anything such as a perfect bill,” says Fred Sainz, the HRC’s vice president for communications and marketing. “HRC has done a tremendous amount of work bringing on a record number of bipartisan cosponsors for ENDA in the House and Senate. We, along with every single LGBT member of Congress who continues to support ENDA, believe we have an obligation to see it through.”
It’s important, however, not to overstate the significance of the split on ENDA. What’s true for the advocacy groups that dropped support of the law is also true of the disagreement more generally: Until the legislation stands a chance in Congress again, the split is costless. Only once ENDA is on the legislative agenda will the backing of the various groups have a bearing on its passage. But with Republicans in control of the House, it seems that won’t happen for some time.
Which brings the battle back to the states. With ENDA on the back burner and the president’s executive order, LGBT-rights groups are now left to focus on filling in the patchwork of state and local laws protecting LGBT folk from discrimination in employment, housing and public accommodations. Currently, 21 states and the District of Columbia prohibit discrimination on the basis of sexual orientation; 18 and the District of Columbia also prohibit discrimination on the basis of gender identity. In the remaining 29 and 32, LGBT-rights groups can expect microcosms of the national fight. Conservative religious leaders and organizations will ask for exemptions. But at the local and state levels, the major gay-rights groups and the HRC continue to present a united front, arguing for the broadest protections possible.
“HRC always pushes for the narrowest religious exemptions feasible,” Sainz says. “In most states, we are simply adding sexual orientation and gender identity to existing laws.”