In a recent post about gay rights groups’ abandonment of ENDA, I attempted to explain the distinction between different kinds of religious exemptions in nondiscrimination laws. As it turns out, the wonderful Jay Michaelson explained it much better than I did in the Daily Beast. Here’s a visualization of Michaelson’s description, with a few of my own tweaks and additions, designed with the help of Slate’s Natalie Matthews-Ramo.
The important thing to understand here is that there’s a huge leap between the first two levels and the last three. Levels 1 and 2 are constitutionally compelled by the First Amendment: Religious institutions must be free to fire anyone who performs religious tasks at a church or church-run workplace. A Level 2 exemption would allow a Catholic school to fire a gay teacher for being gay if he partakes in spiritual activities like leading Mass. A Level 3 exemption would allow a Catholic hospital to fire a gay nurse for being gay—even if that nurse has nothing to do with the hospital’s religious functions.
Level 4 is even worse. This is the Hobby Lobby level: A for-profit organization that performs no religious functions demands an exemption from a generally applicable law because it violates its owners’ beliefs. Level 5 goes a step further with this logic, allowing any individual to violate a law—in reality, almost always an LGBT non-discrimination statute—that goes against their own religious principles.
The most recent version of ENDA included a Level 3 exemption, though gay rights groups feared that the provision was so broadly worded that it might lead to a Level 4 exemption. Conservatives who support “religious liberty” bills like Arizona’s tend to favor Level 4 and Level 5 exemptions for everyone, effectively rendering any LGBT nondiscrimination law completely toothless.
If left-leaning lawmakers listen to gay rights groups, the next version of ENDA will likely have a Level 2 exemption, in line with other employment nondiscrimination protections. But centrists are almost certain to propose a Level 3 exemption as a compromise. We can’t know right now whether a future version of the bill could survive without a freedom-to-discriminate clause. If recent history is any indication, however, just keeping the law from reaching Level 4 might be a small victory.
