Employment Non-Discrimination Act

President Obama signing an executive order on July 21 against hiring discrimination by federal contractors. Public domain image

One of the toughest political calculations in Washington is balancing competing claims of gay rights with the traditional prerogatives of religious freedom. After a number of setbacks on that front, President Obama may have finally found a small patch of middle ground with Monday’s move to bar federal contractors from discriminating on the basis of sexual orientation.

Obama’s executive order shields gay, lesbian, bisexual and transgender employees from discrimination by companies that do work for the federal government by adding sexual orientation and gender identity to long-standing protections from bias based on “race, color, religion, sex, or national origin.”

Yet Monday’s action also leaves in place a 2002 order signed by President George W. Bush that gives religious groups with federal contracts some leeway by allowing them to use religious beliefs as a criterion in making hiring and firing decisions; as a candidate in 2008 Obama pledged to overturn that exemption.

At the same time, Obama did not expand the exemption to explicitly allow religious groups that receive federal funds to use sexual orientation as grounds for hiring and firing, as some demanded.

Workers march for employment equality at San Francisco’s Market and Castro streets in 2010. Creative Commons image by Matt Baume

What’s the next religious liberties faceoff? Some suggest it could be between LGBT workers and religious owners of private businesses.

On Monday, while news media dissected the Supreme Court’s Hobby Lobby ruling, President Obama pledged to sign an order protecting federal employees from  discrimination based on gender identity .

But he has yet to sign an executive order version of the Employment Non-Discrimination Act, which would ban discrimination based on gender identity for all federal contractors and subcontractors, an order that affects for-profit businesses.

Now, in the wake of the Hobby Lobby ruling, such an order could rile the waters again, several legal experts say. They see a line between a ruling about contraception and hiring, firing, and benefit concerns for lesbian, gay, bisexual, and transgender employees.

Speaker of the House John Boehner at the Values Voter Summit in 2011. Photo via RNS/courtesy Gage Skidmore via Flickr

As a law extending workplace protection to gay, bisexual, and transgender workers makes its way through the Senate this week, there’s a shift in the political air: Arguments that stand purely on religious grounds are no longer holding the same degree of political sway they once did.

The rhetoric from Republican and conservative opponents of the Employment Non-Discrimination Act is moving away from the morality of the bedroom and into the business sphere. More politicians are fighting ENDA as a bad economic move, not as a break with the Bible.

ENDA would “increase frivolous litigation and cost American jobs, especially small business jobs,” Speaker John A. Boehner said in a statement released Monday, which made clear the Senate bill is dead on arrival in the GOP-controlled House.