Right now there are LGBTs who have been fired or forced to resign from religious institutions because no law exists protecting people from being fired for that reason. ENDA with that religious exemption would do nothing to help those folks and in fact, would actually work against them in a particular way. Right now many of the people who've been fired or forced to resign have filed lawsuits that could effectively be negated should ENDA become law. How? It's one thing to be fired because no law currently exists, in which case you can demand the court define what qualifies as employment discrimination, but quite another to be fired knowing there is a law in place that allows your employer to do so under a religious exemption. Capiche?
Further, as was demonstrated by the Hobby Lobby decision, such religious exemptions could result in an actual expansion of corporate discrimination against LGBTs, not lessen it. In the HL decision the Supreme Court outlined that family businesses with religious convictions could exercise the religious exemption in not following the contraception mandate. Well, you might wonder what exactly qualifies as a "family business" or as the SC put it, a "closely held" corporation?
The three firms in the lawsuit—Hobby Lobby Stores Inc., Conestoga Wood Specialties Corp. and Mardel—all have the same business structure: they are owned and controlled by members of a single family.
But closely held firms can take other ownership forms. The Internal Revenue Service defines a closely held company as a corporation that has more than 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at any time during the last half of the tax year. It also cannot be a personal-service corporation.
Closely held companies are owned by a relatively small number of investors, typically including their founding families and management. Roughly 90% of all companies in the U.S. are closely held, according to a 2000 study by the Copenhagen Business School....
So what many LGBT activists realized, thanks to the Hobby Lobby decision, is that religious exemptions could and would be used not only by churches and religious charities but by for-profit corporations because the SC decided that corporations could also have closely held religious beliefs. That effectively creates an out for all but about 10% of for-profit corporations, and those 10% aren't likely to be those with discriminatory policies to begin with.
This is why the Hobby Lobby decision was so critical not just for women's rights but for those of LGBTs. ENDA, with the religious exemption, could have the reverse effect intended and set a legal precedent that could take decades to untangle.
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