The Workplace Religious Freedom Act of 2005 is opening up the landmark Civil Rights Act of 1964 to amendment. GLBT advocates say the current wording of the act may threaten gay workers.
The move also undercuts a principle reason given by traditional civil-rights groups for not supporting a gay-inclusive amendment to the civil-rights bill.
The Workplace Religious Freedom Act ( WRFA ) ( S. 677, H.R. 1445 ) was introduced on March 17 with the bipartisan support of truly strange political bedfellows. Gay nemesis Rick Santorum is the lead sponsor in the Senate, joined by John Kerry and Hillary Clinton among others. It has been around for several sessions of Congress.
The lead sponsor in the House is Mark Souder, who is equally if not more homophobic than Santorum. His staff has pushed harassing audits of AIDS services organizations and promoted abstinence only HIV-prevention programs. Democrat Chris Van Hollen, a charismatic young progressive from Maryland who is running for the Senate, provides the bipartisan cover.
Title VII of the Civil Rights Act requires employers to give reasonable accommodations to the religious needs of their employees, so long as it does not impose undue hardship on the employer.
'The problem we face now is that our federal courts have read these lines out of the law by ruling that any hardship is an undue hardship,' Santorum said in a statement released when the bill was introduced.
Christopher Anders, a lobbyist with the American Civil Liberties Union ( ACLU ) , has a very different take on WRFA. He fears it will 'undercut state and local laws … and corporate employment policies that go beyond the basic federal statute' in terms of protecting all citizen from discrimination in the workplace.
Access to healthcare is one worry. The way the bill is currently written would allow healthcare workers 'to deny GLBT patients full and fair access to medical treatment' simply on religious grounds, according to Anders.
Even under existing law social conservatives have been supporting the 'religious freedom' of pharmacists on the job to refuse to provide contraception or the so-called 'morning after' pill that some hold to be akin to abortion.
Christopher Labonte, legislative director for the Human Rights Campaign ( HRC ) said they share the goal of allowing religious freedom in the workplace, but they don't want it to come at the expense of the GLBT community.
WRFA, as currently drafted, would allow a person to make religious claims 'to refuse to work with a gay person, regardless of the company's anti-discrimination policies.'
The Leadership Council on Civil Rights, the umbrella coalition behind every major piece of civil-rights legislation, sent an alert to its members last year on WRFA, however it has yet to reach a consensus position on the latest incarnation of the bill.
Opposition from the business community, both to the principle of increased federal intrusion into the workplace and to specific aspects of this bill, has been the major reason why it has not passed before.
But Santorum is up for reelection this year and has said that this is one of his priority pieces of legislation, so the political dynamics may change.
CONTEXT AND OPPORTUNITY
Amending the Civil Rights Act also might offer an opportunity to GLBT advocates, should they choose to seize it.
An amendment to add sexual orientation to that core civil-rights legislation was first introduced in 1975 by Rep. Bella Abzug, D-New York, who represented the West Side of Manhattan. The number of cosponsors grew slowly, topping 100 in the House in 1992, but it never got a hearing let alone a vote.
A backlash to affirmative-action programs made traditional civil-rights groups leery of opening up the Act to amendments, or at least that is what they told gay groups.
That in part led gay advocates to adopt a strategy centering on the employment piece of the puzzle with introduction of the Employment Non-Discrimination Act ( ENDA ) in 1994. HRC made ENDA the cornerstone of its legislative agenda and dropped support for amending the Civil Rights Act.
'By coming up with this concept, we were able to get united support from the civil-rights community, and especially the very influential Leadership Conference on Civil Rights,' Rep. Barney Frank later explained in an extended posting to the Queerpolitics listserv in November 1999. 'We were also able to write a bill from the start which was tailored to the specific kinds of discrimination gay and lesbian and bisexual people faced, and avoided the awkwardness of having to undo parts of the Civil Rights Act which we felt might not be relevant.'
The other part of the equation was that gay advocates thought they could pass ENDA, if not immediately, then within a few years, certainly during Bill Clinton's second term as President. More than a decade has passed and that does not seem to be the case.
A lone congressman continues to carry the torch for the amendment approach—simply because he believes it is the right thing to do—by introducing it at the beginning of each session. The Civil Rights Amendments Act of 2005 ( H.R. 288 ) was introduced Jan. 6 by Edolphus Towns, an African American who represents Brooklyn, New York.
When asked in past years if it supports the Towns bill, HRC has demurred, saying it is the wrong approach. Labonte dodged the question this time. He said they would 'continue to pursue opportunities' to state the case for legal protections for gay Americans during the debate on Social Security reform and other legislation.
Anders said the ACLU is focusing on stopping what they consider to be ill-advised and dangerous legislation. They 'haven't gotten that far' in considering whether to try and get gay-inclusive language added as part of any amendments to the Civil Rights Act of 1964.
