Today, the United States Senate passed the Employment Non-Discrimination Act (ENDA). It is a development that must be greeted with great concern.

It goes without saying that no person should be unjustly discriminated against in the workplace. Indeed, every American should be able to enter the workforce and pursue a livelihood.

But ENDA fails to adequately take into account the rights of religious entities. While recognizing that an exemption for religious entities is warranted, the precise formulation of the exemption leaves us with serious questions as to the scope of the protection it affords. Indeed, because of conflicting opinions in different federal circuits, it is not clear which religious entities or activities come within its parameters. Moreover, suggestions that Agudath Israel and other groups put forward to strengthen Free Exercise protection – for example, making clear that ENDA should not in itself be construed as constituting a “compelling state interest” or including a “bona fide occupational qualification” exception — were not incorporated by the sponsors into the bill. All of this deprives religious freedom a full measure of protection.

At the same time, we wish to congratulate and thank Senator Rob Portman (R-OH) and Senator Kelly Ayotte (R-NH) for the amendment they offered, and that was subsequently adopted by the Senate, that prohibits retaliation by federal, state or local governments against religious organizations that choose to utilize the ENDA exemption and the protection it provides. Such retaliation – which can take the form of penalizing or withholding benefits from religious organizations, etc. – for legal actions undertaken by these organizations is blatantly unjust and shows an distinct animus toward religion that has no place in our society and that rightfully deserves condemnation. Agudath Israel is proud to have played a part for several years in developing and promoting such a provision, and pleased that the Senate decided to adopted it.

The most unfortunate aspect of ENDA’s history is that today it has little to do with “discrimination.” ENDA is no longer intended simply to “right a wrong.” Rather, many of its proponents have used it – as they have used gay marriage — to force change in the belief system of Americans whose faiths teach that homosexual behavior is immoral – indeed, a sin in the eyes of G-d — and not to be accepted or condoned in society. Proponents have castigated those religious adherents as “haters,” “bigots” and “liars” and they engage in these characterizations in the hope that those who reject homosexuality will become pariahs and that this activity will gain greater legitimacy in religious doctrine and, through it, in society. The implications of this course are ominous.

We intend to convey our opposition to this legislation to House leaders — based upon our belief that it is unnecessary and presents dangers to religious liberty and societal values.

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