ENDA and religious exemptions

[William Esser]

>>First, ENDA is not the only legislation in the Congress at this time which
>>is aimed at achieving the same result.  House Bill 365 (1997) entitled the
>>"Civil Rights Amendments Act of 1998" would simply insert sexual
>>orientation into the categories protected under Title VII.  This would be
>>far worse than ENDA since it (facially) would not allow any exemptions for
>>religious organizations.  After Smith, who knows whether or not this would
>>pass a Free Exercise challenge.

Prof. Koppelman writes:

>This must, I think, rest on a misreading of Title VII.  The Catholic Church
>refuses to ordain women, but there has never been a successful (or, so far
>as I know, an unsuccessful) Title VII suit for this sex discrimination.  If
>a church can discriminate against women, I would think it would be
>privileged to discriminate against gays.

A clarification to my statement:

There is a key distinction which needs to be drawn in this case.  Facially,
Title VII does prohibit the Catholic Church from refusing to ordain women.
However, under the Free Exercise Clause, there has originated an exception
known as the "ministerial exception."  This exception relieves churches
from all employment laws in relation to their ministers (see E.E.O.C. v.
Catholic University (2d Cir. 1996) holding that exception survives Smith)
but that is where the line ends.  For all other areas of employment (i.e.
non-ministerial), churches may not discriminate upon sex or race.  This one
exception is a matter of constitutional law and not a matter of statutory law.

Thus, the addition of sexual orientation to Title VII would have this
effect:  Churches could still discriminate on sexual orientation regarding
the employment of a minister (due to Free Exercise protection) but could
not likewise discriminate for any non-ministerial employee.  Thus, the
proposed bill (Civil Rights Amendments Act of 1998) would not even give the
statutory exemption afforded by the ENDA (churches may discriminate for any
employee.)


Will Esser
Second Year Law Student
University of Notre Dame