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, Vol. 3, No. 1

31 Pages Posted: 18 Dec 2010 Last revised: 7 Apr 2011

Richael A Faithful

National Lawyers Guild Review

Abstract

This comment discusses ENDA’s long history of broad religious exemption and its meanings for LGBT civil rights progress ahead. Part I traces ENDA’s religious exemption transformation from 1994 to present, noting a narrowing of the exemption as the LGBT movement witnessed increasing political success. Part II examines the delicate balance between the First Amendment Religion Clauses, as well as LGBT civil rights and religious freedom, and argues that ENDA’s previous exemptions tipped this delicate balance toward religious over-accommodation prohibited by the Establishment Clause. Part III concludes that the LGBT movement experienced a significant victory with the modified religious exemption in the 2009 version of ENDA, which challenged the conservative Christian bloc’s political and cultural monopoly over LGBT rights’ narrative, and represents the defeat of a potentially dangerous precedent for future civil rights struggles.

Suggested Citation

Faithful, Richael A, 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, Vol. 3, No. 1 . Available at SSRN: https://ssrn.com/abstract=1727707

Richael Faithful (Contact Author)

National Lawyers Guild Review ( email )

United States

HOME PAGE: http://www.nlg.org/resources/publications/nlg-review/

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