Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act

Legislation and Policy Brief, Jan 2011

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

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Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act

Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act Richael Faithful 0 0 American University Washington College of Law , USA Follow this and additional works at: http://digitalcommons.wcl.american.edu/lpb Part of the Religion Law Commons Recommended Citation - Article 3 Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act Richael Faithful* I. II. The Evolution of ENDA’s Religious Organization Introduction..........................................................................55 Exemption................................................................................59 A. ENDA’s EvolutioN B. t hE YEAr of CompromisEs from 1994 to 2007.........................59 ..............................................62 III. Tipping the Balance Toward Religious Over-Accommodation .........................................................69 A. t hE Est AblishmENt ClAusE AND r Eligious f rEEDom t ightropE ........................................................................70 B. r ECoNCiliNg r Eligious C. t hE issuE of r Eligious f rEEDom AND lgbt r ights ......73 ExEmptioN NExus : DissECtiNg thE CompElliNg iNtErEst for r Eligious ExEmptioN uNDEr ENDA...................................................................78 D. t hE r isk of r Eligious o rgANizA tioN ExEmptioN o vEr -ACCommoDA tioN ....................................................81 IV. Challenging Conservatives’ Entitlement to Religious Exceptionalism ...................................................84 V. Conclusion ............................................................................86 I. IntroductIon 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.1 The law’s enactment allowed D.C. to become the sixth jurisdiction to sanction same-sex marriage in the United States.2 Supporters hailed the law as a * J.D. Candidate, American University Washington College of Law, 2011; B.A., The College of William & Mary, 2007. Current Editor-In-Chief of The Modern American. Former community organizer with Virginia Organizing and Board of Director at Equality Virginia. I would like to thank Jamie Abrams for her feedback and support on this article. 1 A18-0248, enacted as L18-0110, Dec. 18, 2009. See D.C. City Council, “Religious Freedom and Civil Marriage Equality Amendment Act of 2009,” http://www.dccouncil.washington.dc.us/ lims/legislation.aspx?LegNo=B18-0482&Description=RELIGIOUS-FREEDOM-AND-CIVILMARRIAGE-EQUALITY-AMENDMENT-ACT-OF-2009.&ID=23204. 2 Ian Urbina, D.C. Council Approves Gay Marriage, N.Y. Times, Dec. 15, 2009 available at http:// www.nytimes.com/2009/12/16/us/16marriage .html. victory for lesbian and gay equality, while detractors vowed that their efforts to traditionally define marriage would co3 ntinue. 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.4 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.5 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.6 Weeks later, the Catholic Archdiocese announced that it would no longer offer spousal benefits to its new employees.7 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.8 D.C.’s samesex 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 3 Id. 4 See Catholic Charities, “History and Mission,” available at http://www.catholiccharitiesdc.org/ about/history_mission/ (stating that Catholic Charities is the largest private service provider in the D.C. area). 5 WilliamWan, Same-sex marriage leads Catholic Charities to adjust benefits, Wash. Post, Mar. 2, 2010 available at http://www.washingtonpost.com/wp-dyn/content/article (...truncated)


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Richael Faithful. Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act, Legislation and Policy Brief, 2011, Volume 3, Issue 1,