Following the U.S. Senate’s passage of the Employment Non-Discrimination Act (ENDA), some, including Arizona Senator John McCain, have pointed to the adoption of the amendment put forward by Senator Rob Portman as evidence that the religious exemption in the bill was “beefed up” or amended to more fully protect religious freedom under the bill. Nothing could be further from the truth.
The Portman Amendment, available here (subsection (b) on pages 10-11), does nothing to expand the religious exemption under ENDA, and it merely says that those originally exempt under the bill (basically only churches) cannot be penalized by the government. The amendment does nothing to protect business owners and employers with sincerely held religious beliefs, and it is likely this amendment was a way for some senators to gain “cover” for voting yes for ENDA. As a sign that the Portman Amendment was meaningless, it was reported that LGBT advocates from the Human Rights Campaign as well as the ACLU quickly stated they did not oppose the amendment, saying that it was an unnecessary provision.
In contrast to the Portman Amendment, Senator Pat Toomey offered a much more meaningful amendment to expand the protections in the religious exemption, see Senator Toomey’s amendment here. Although Senators McCain and Flake both voted for the Toomey Amendment, after the amendment failed to be adopted, both Arizona Senators voted for the final passage of ENDA nonetheless.
One other important point: some have said that ENDA’s religious exemption can be strengthened in the House of Representatives, yet this seems highly unlikely. In fact, as an example of the growing disdain by some and lack of respect for religious liberty, backers of ENDA would prefer to completely eliminate the religious exemption, as this New York Times editorial says.
ENDA is bad public policy and threatens the religious freedom rights of every American.