In Good Company ENDA’s Game

Nov 7, 2013

Within the next few days, the U.S. Senate is expected to debate ENDA, the Employee Non-Discrimination Act.  The bill would prevent workplace discrimination on the basis of sexual orientation or gender identity, and provides an exemption for religious employers.

Who could be against that, right? Decent people everywhere oppose workplace discrimination, and for Catholics, there are additional incentives: unjust discrimination is a sin, and Pope Francis has recently been speaking a great deal about the importance of work to human dignity, calling on us to create a culture of work, not welfare.

The problem is the innocuous or even noble-sounding name of the legislation masks some pernicious measures that the USCCB, represented jointly by the chairmen of its committees on marriage, on religious liberty, and social justice, has highlighted in a recent letter to senators.  Among the problems (which are documented in a lengthier backgrounder here) are a failure to protect individual free speech rights and religious liberty, a too-narrow religious exemption, a failure to distinguish orientation from behavior, and the absence of any provision for “bona fide occupational qualification” – a standard feature of other anti-discrimination legislation.

In layman’s terms, that means ENDA’s passage would forbid keeping trans-gendered men out of women’s bathrooms (because the bill protects gender “expression” as part of gender “identity”), would forbid common-sense and dignity-protecting practices such as hiring only female correctional officers for all – female prisons and the like.

Most appalling of all, the bill’s so-called religious exemption does not defend individual consciences at all. Only narrowly-defined religious employers have any exemption. Everyone else – not only employers, but colleagues as well – could potentially face nuisance lawsuits for simply professing, without animus, their skepticism of the goodness of sex outside of the context of man-woman marriage.

It brings to mind an incident several years ago in which a man working at a local clothing chain hosted a manager in his store for the day. She was there, if I recall correctly, to go over the books and help with inventory. In the course of workaday chit-chat among all the employees, she mentioned her upcoming gay wedding. The employee in question said nothing and went about his business. Later, however, when they were alone, she cornered him and asked to know what he thought about her wedding. He changed the subject, but she pestered him about it throughout the day until finally, at the end of the day, after she pressed him hard, he reluctantly admitted that while he did not wish to offend her or hurt her feelings, his Christian convictions did not permit him to support gay marriage. She denounced him to upper management and he was fired for creating a hostile workplace environment.
That was the result of one company’s freely-chosen workplace “discrimination” policy. Imagine it as the standard for Federal law.

Think the concern that ENDA threatens religious liberty is exaggerated? Washington Blade, Washington, DC’s leading gay newspaper,  recently reported its disappointment that there is any religious liberty exemption in the bill at all – and reported Senate Majority Leader Harry Reid’s promise to gay rights groups that once the bill was passed, he would work to go back and “fix” the amendment. An activist present at a meeting with Sen. Reid reported:

“I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”

A Reid spokesperson later confirmed that account according to the story.
The article goes on to cite the case of a teacher at a Catholic school fired for marrying her lesbian partner as an example of “discrimination” that should not be protected. 

Fortunately the bill, some version of which has been introduced in almost every Congress since the 1990s, is not likely to pass this year. It may or may not pass the Senate depending on what religious liberty language emerges from the floor debate, but sources among Congressional staff tell me the bill probably won’t see the light of day in the House of Representatives.

Nevertheless, it’s worth being clear-eyed about the fact that not everyone is looking for ways for all of us to simply get along in a pluralistic society. There are groups openly disapproving of the free exercise of religion and trial lawyers salivating to help them.

Note, too, how politically weak (morally and rationally it’s rock-solid) is the position from which the bishops are arguing. Increasingly they are in the position of begging for exemptions from laws that apply to everyone else. That’s not a happy position to be in – anyone who upholds traditional morality increasingly has to frame himself as outside the law, requiring special treatment. That’s a fast road to second-class citizenship and the loss of rights. Exemptions, as Senator Reid indicates, can easily be taken away.