IN 1994, former U.S. Rep. Gerry Studds, D-Mass., introduced the Employment Non-Discrimination Act (ENDA), a bill that prohibited employment discrimination based on sexual orientation while exempting religious organizations (except for their for-profit activities). The legislation garnered 137 co-sponsors, but it never received a vote.
Right-leaning Christian advocacy organizations remained uniformly opposed to ENDA for the next two decades, as lawmakers from both parties filed similar legislation in every Congress but failed to put a bill on the president’s desk.
In 2014, the Supreme Court’s Burwell v. Hobby Lobby decision changed the state of play. After the court ruled the Christian-owned company did not have to include abortifacient drugs in its employer-sponsored health insurance plans, the Human Rights Campaign and other LGBT advocacy groups announced opposition to ENDA’s religious exemption. They said religion had become an excuse for discrimination.
That set the stage for four key events the next year. First, in January 2015, the Mormon church dropped a bombshell: It supported—and wanted passed—ENDA-style legislation with religious protections. Republican state Sen. Stuart Adams, a Mormon who had helped pass Utah’s 2004 constitutional amendment defining marriage as between a man and a woman, championed legislation (SB296) that became the only statewide SOGI law enacted in the last five years.
The legislation didn’t address public accommodations but prohibited housing and employment discrimination against LGBT persons. While the religious exemption included churches, religious organizations, those who issue marriage licenses, and private speech, it did not protect on-the-job speech or Christian business owners with more than 15 employees.
The second key event came two weeks later: Indiana lawmakers passed a state Religious Freedom Restoration Act that was almost identical to what 19 other states and Congress passed previously—but gay rights groups said it was a license to discriminate. Cue national controversy.
The third event came a month later: During oral arguments in Obergefell v. Hodges, Justice Samuel Alito asked U.S. Solicitor General Donald Verrilli if a university that opposed same-sex marriage could lose its tax-exempt status in the same way Bob Jones University did for opposing interracial dating. Verrilli’s response: “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that.”
The fourth event: In June, the Supreme Court issued a landmark ruling legalizing same-sex marriage in all 50 states. In his majority opinion, Justice Anthony Kennedy said dissenting Americans would still have the right to disagree.
“We take Justice Kennedy at his word,” Rep. Raúl Labrador, R-Idaho, told me after introducing the First Amendment Defense Act, a bill that would prevent the government from taking any “discriminatory action” against a person or organization for its beliefs on marriage. The CCCU, already eyeing the Utah model, didn’t publicly sign on to the legislation, although it later said it supported the bill