Dr. Jillian T. Weiss

Are We Ready? Arguments Against ENDA (Part II)

Filed By Dr. Jillian T. Weiss | September 13, 2009 7:00 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, religion

ENDA is coming, and we must get ready for the coming onslaught of illogical arguments. Anything involving religion in politics, even peripherally, is sure to frighten some that the government is infringing their right to practice their religion. Fortunately, ENDA does not prohibit any religious beliefs or expressions protected by the First Amendment. However, that will not stop the argument from being made. Today we will take at look at religious arguments against ENDA.

Religious opponents of ENDA are using the "reverse-discrimination" argument. The suggestion here is that ENDA will force churches and religious schools who have religious objections to hire lesbians, gays, bisexuals and transgenders.

In addition, the argument is that by forbidding religious extremists from rousting LGBT workers from their jobs, they are being prohibited from practicing their religion. Furthermore, these opponents say that ENDA will call for the firing of any employees who disapprove of homosexuality and prohibit any religious symbols in the workplace, such as the Bible, because the religion they symbolize condemns homosexuality. These arguments are incorrect. They can be rebutted effectively. But they are tricky, because the line between religious freedom and religious intolerance has always been a slippery one.

There are a lot of intertwined arguments here, and the law with regard to the First Amendment's freedom of religion is particularly thorny. Let's take them one at a time.

"Religious Schools, Camps And Other Religious Organizations Will Be Forced To Embrace Homosexuals Or Be Liable And Lose Tax-Exempt Status!"

The Christian Post recently filed an article that implies that ENDA will require churches to hire gay employees.

bible.jpgIf ENDA is passed, church-related organizations and facilities can lose their tax-exempt status if they refuse to hire a gay employee, Deo of the New Jersey Family Policy Council warned.

He pointed to a case in 2007 when a New Jersey Methodist-owned camp facility refused to allow a gay couple to use one of their buildings for a civil union ceremony. The result of a court battle was the church losing its tax-exempt status for the beachfront property.

"This bill will put para-church organizations and people of faith who own secular, for-profit businesses in jeopardy of liability if they hire or fire based on their religious beliefs or moral convictions about homosexual behavior," said Ashley Horne, federal policy analyst for Focus on the Family Action on Friday. "This is yet another attack on religious liberty in a long string and must be stopped."

From a legal standpoint, that would indeed be troubling, if it were true that churches would be forced to hire people in their religious places of worship against their religious beliefs. While I want to end rampant discrimination against LGBT people, I also believe in religious freedom. That means people must be allowed to believe doctrines whether I like them or not, and to worship and to teach and to hire ministers as they see fit.

However, Mr. Deo's representations as to the facts of the case are far from complete, and involve a very different situation from that of ENDA. The Methodist-owned "camp" was not a haven for religious young campers, but the "Ocean Grove Camp Meeting Association," which is neither a camp nor a church. Rather, it is an organization run by Methodists that owns all of the land in Ocean Grove, New Jersey, most of which is used for homes, stores, restaurants, hotels, and beach boardwalks. The Association made the beach, the boardwalk, and the boardwalk pavilion into public access property. Many weddings were held in the pavilion. When a gay couple wished to have a commitment ceremony in the wedding hall, the Association refused to accommodate them.

This is very different from the employment situations contemplated by ENDA. Unlike the public accommodations section of the New Jersey Law Against Discrimination, which has no exemption for religious organizations, ENDA has specific provisions detailing exemptions for churches and religious educational institutions.

It should also be noted that, although the Association initially lost its tax exemption, the State of New Jersey reinstated the Association's exemption from property tax for the beach and the rest of the boardwalk, but stated that it could not continue to exempt the pavilion as it was not truly open to the public.

Box Turtle Bulletin has the full story.

ENDA Does Not Apply To Religions Organizations Exempt Under Title VII

ENDA specifically notes that it does not apply to a religious organization exempt under the religious discrimination provisions of Title VII, the current federal employment non-discrimination law. Such organizations are allowed to discriminate on the basis of religion, and ENDA would not affect them. A religious organization, such as a church, and a religious educational institution, such as a school or camp, is permitted to discriminate on the basis of religion for any employee.

What constitutes a religious educational institution that is exempt from religious discrimination under ENDA? According to the statute, it is exempt if it is owned, supported, controlled, or managed by a particular religion or religious organization, in whole or in part. That's quite broad, because it means that, so long as the religious organization plays a part in the institution, it is exempt. Additionally, even if a religious organization plays no part in the institution, the institution will nonetheless be exempt if its curriculum is directed toward the propagation of a particular religion. That is very broad protection for religious schools, camps and other educational institutions.

Congressman Bill Young Says No Fair Trying To Sneakily Exempt Religious Schools And Being All Reasonable And Stuff

Strangely enough, Representative Bill Young argues that this generous exemption clause is dangerous, because it means that the government will start investigating religious educational institutions.

From: Congressman Bill Young
Sent: Wednesday, July 8, 2009 4:54:50 PM
Subject: Re: Please Co-Sponsor the Employment Non-Discrimination Act

July 8, 2009

...ENDA did not provide adequate exemptions for religious organizations, which could have resulted in limitations on the hiring prerogatives of non-denominational religious schools. ENDA did provide exemptions for the armed forces and for religious organizations. The definition of religious organization, however, was limited to educational institutions that are at least substantially controlled, managed, owned, or supported by a particular religion or use a curriculum that is directed toward the propagation of a particular religion. This narrow definition still failed to cover non-denominational religious schools and invited the federal government to investigate the religious nature of schools' curricula.

With all due respect to Congressman Young, his argument is of the disingenuous "heads I win, tails you lose" variety. The exemption for religious schools that he cites is not "narrow." It exempts any school or camp that is religiously affiliated, and I am unsure how such a definition could be made any broader. He is arguing that schools can never be the subject of anti-discrimination law because any religious exemption for schools could require someone at some point to look and see whether an educational institution is religiously affiliated. He's pointing and shouting "get your government hands off my religion!!" while the government has its hands in its lap.

Congressman Young's argument is an argument against any law applying to a religious school, not an argument against ENDA. Would he say that a requirement that a religious school have an educationally sound curriculum is a violation of religious freedom, because the government might have to take a peek at the school's curriculum? Sounds like he is arguing yes.

Would he say that the religious exemption in Title VII, the current federal anti-discrimination statute, is a violation of religious freedom? Sounds like he is arguing yes.

The religious exemption in ENDA that he so despises is exactly the same as the religious exemption in Title VII.

It makes eminent sense to exempt religious schools that have a sincere belief that homosexuality is wrong from the requirement of hiring gay employees. At the same time, schools that are not part of a religious organization or religious propagation should not have a pass when it comes to anti-discrimination law.

Such determinations are routinely made now. Some schools are now exempted from government requirements because of their religious nature. That is not a violation of religious freedom. And if that is not a violation of religious freedom, neither is ENDA.

ENDA Exempts Jobs With A Bona Fide Occupational Qualification

There is an exception in Title VII and ENDA even for private employers, and this shows the lengths to which these non-discrimination laws try to accommodate a private non-church employer involved in religious commerce.

If it is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, then the employer may restrict its hiring to religious believers.

For example, if I'm hiring someone to sell Bibles, I can restrict my hiring to those who believe as I do. If I'm hiring a construction worker, then I need to look at her skills, not her sex or her sexual orientation.

Thus, any employer, even if it is not itself a church or a religious educational institution, can restrict its hiring to those who have certain beliefs for those jobs that require such beliefs.

There is a very large degree of religious freedom built into ENDA.

But some people will not be happy no matter what.

It's Against My Religion To Hire Those People

One of the major arguments of ENDA's opponents is that employers, which are owned or managed by religious people whose religion prohibits homosexuality, should be permitted to shun LGBT employees.

The Christian Post said of ENDA:

...its opponents argue that it is in fact religious employers who disagree with the homosexual lifestyle that are being discriminated against.

Ashley Horne, federal policy analyst for Focus on the Family Action, said ENDA's passage would threaten religious freedoms. "Gay rights activists have wanted this bill for a long time," she said, "to keep religious employers from being able to hire and fire based on their moral convictions."

The American Family Association is saying that ENDA "turns private sin into a public right."

"It takes away the idea that sex is created by God in two different categories -- male and female -- and it makes it entirely a radical, self-determined persona. The larger problem of this is it turns private sin into a public right," he contends. "It puts Christian and Jewish employers on the defensive, saying that if you don't give in and accord civil-rights privileges based on behavior that you know is sinful, 'We're coming after you. We're going to fine you. We're going to punish you.'"

According to Knight, the bill "criminalizes God's biblical morality in the workplace."

The question here is whether, in a democracy, the majority can decide that shunning an entire group of people and making them unemployable is a social problem requiring redress. The answer here is yes, that in a democracy in the 21st century, in supposedly the leader of the free world and the most enlightened country in the world that is vigorously exporting its values to the rest of the world, it is a social problem for a large group of people to be the subject of open employment discrimination. Of course the people doing the shunning are going to object. It is a rejection of their values, and they are not going to like it. I wouldn't expect them to like it. That's the point of the law. That's why the "anti-shunning" law is needed in the first place.

But here, the shunners are wrapping their values in the cloth of religious faith, loudly proclaiming that God wants them to shun this group, and pointing to the First Amendment as their justification.

Our Constitution strikes a balance between religion and the state. The state must stay out of religion. But when my religion intrudes into the marketplace, into the public square, that is a different matter. When I, as a private person and not as a church, decide to enter the public marketplace as a secular employer, then my behavior needs to conform to certain requirements. I can't start sacrificing goats in the public square, and protesting that it's my religion. I can't start hitting certain people I don't like over the head with a rubber chicken and saying God requires it, so hands off.

If the legislature decides that shunning of certain kinds of people creates a social problem within its competence to redress, and people want to put themselves out in the public marketplace as secular employers, it has not heretofore been considered a good excuse that one's religion requires shunning those people. Shun, shun, shun! Shun the non believer!

The "it's against my religion to hire these people" argument has been tried before, and the courts have soundly rejected it in the context of other forms of discrimination. There are some who are going to argue that they don't want to hire LGBT people, not because they are a church or have a bona fide occupational qualification, but because "it's against my religion" and I only want to hire people who are like me.

This question was dispositively disposed of after the passage of the Civil Rights Act of 1964. The state has the right to prohibit discrimination based on religion, and it is not a violation of the First Amendment freedom of religion to do so. Under Title VII, I do not have a right to discriminate against Muslims because I am a Hindu. I do not have a right to say "you can't work here because I only want to hire Jews." I do not have the right to demote you because you decided to change your observance of the Sabbath from Sunday to Saturday, or because I saw you eating a ham sandwich that violates my religion, or because you wear a religious garb that's different from my religious garb.

This issue is little different from those who argued that their extremist views required discrimination based on race. As the US Supreme Court said in Runyon v. McCrary (1976), there is a First Amendment right to believe in discrimination.

But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle. As the Court stated in Norwood v. Harrison, "the Constitution . . . places no value on discrimination," and while "[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections...

Employers Will Be Forced To Punish Employees Who Disagree With Homosexuality

This argument concerns another facet of the workplace environment: creation of a hostile environment. In the early years of the Civil Rights Act of 1964, after employers were forced to hire people of races, sexes and religions that they used to shun, the co-workers often made life hell for those new employees. When the employees brought this harassment to the attention of employers, those employers shrugged their shoulders and said "what can I do?" This required a new dimension of non-discrimination law: the hostile environment claim.

When ENDA passes, employers will be required to respond to harassment of gay employees. Thus, not only will employers be required to hire LGBT people, they will also be required to protect them from harassment. To the extent that harassment is religiously motivated, then employers with religious beliefs against homosexuality may indeed find themselves in a position where they are forced to punish harassers who believe as they do.

Opponents of ENDA object because they believe that anti-gay harassment is protected as an expression of religion.

Focus on the Family sent a letter to Congress that says, among other things, "What will happen when homosexual or "transgender" employees object to: religious articles on employees' desks; water cooler discussions about biblical morality; Bible verses taped to cubicle walls; fliers on company bulletin boards advertising discussions concerning traditional marriage? This is already happening in states and municipalities with ENDAtype laws and many of these cases are in litigation."

patricia mauceri.jpgAmericans For Truth About Homosexuality have written about an actress who was fired because of her religious beliefs against homosexuality.

Actress Patricia Mauceri says she was fired and abruptly replaced for objecting to a gay storyline because of her religious beliefs.
Mauceri, 59, a devout Christian, told FOX News that character Vega's gay-friendly dialogue was not in line with the character she helped create by drawing on her own faith.
Mauceri said she was replaced despite offering changes to the script and hoping for a compromise.

It is true that employers will be required to take action against harassers, regardless of whether their motivation is religious or not. There is, however, a clear line between belief and harassment. No one is going to take away your Bible. But you can't hit me over the head with it, either.

ENDA cannot tell anyone what to believe, nor can employers. At the same time, gay employees have the right to live free from harassment on the job. In fact, it is now the law and has been since 1964 that people of all religions and walks of life have the right to be free from harassment on the job based on religion.

Co-workers who want to march up to you and say "You are going to hell to burn in the eternal lake of fire!" are not be free to do so. Will this prohibit a private employer from having a Christmas tree, because some Christian sects condemn homosexuals? No. Will it prohibit a co-worker from saying "I'm a Christian."? No. But it will prohibit an attack on someone whether that attack is religiously motivated or not.

Anti-gay harassment is not an issue of freedom of religion.

"Unlike Other Protected Classes, Like Race And Religion, Sexual Orientation Is A Behavior!"

The most illogical argument against ENDA is the idea that sexual orientation and gender identity are not worthy of legislative protection because they are unlike the other currently protected categories: race, sex, national origin and religion. The attempt is made to distinguish sexual orientation and gender identity from these. The claim is that the current federal law protects identities, not behaviors.

For example, the Christian Post said of ENDA:

"It's just a very dangerous situation when we start passing laws based on people's behaviors," said Len Deo, president of the New Jersey Family Policy Council, to Focus on the Family's CitizenLink.
Bishop Harry R. Jackson, Jr., a church leader from the Washington, D.C., area, argues "sexual orientation" should not be included in the federally protected class list because unlike the other characteristics, a person's sexual orientation can change.

"I find it is an insult for myself as an African American that you are granting through this law special protection for sexual orientation that might only be imagined," said the senior pastor of the 3,000-member Hope Christian Church, during a press conference opposing ENDA.

That's just silly. Religion is a currently protected class, and it can change any time. It is not something inborn. It is acquired, and it is a belief system that requires certain behaviors, and yet it is protected from discrimination by federal law. It is impossible to justify the idea that sexual orientation and gender identity are entitled to less protection than religion because the former involves behaviors but the latter does not.

And yet, we see this argument coming from the mouths of Congressmembers.

From Pam's House Blend:

Blender Stevious attended a town hall meeting held at IBM in Austin by Congressman John Carter (R-TX-31), and the topic of the pol's no vote on ENDA. The answer that Carter gave can be summed up as sexual orientation isn't an "attribute" deserving of anti-discrimination protections.

The bottom line of this long discussion is that ENDA does not violate freedom of religion. It prohibits employment discrimination against LGBT people, but does not stop anyone from believing anything they like about being lesbian, gay, bisexual or transgender.

What it does is to give LGBT people the right to have a job.

This should not be a controversial point in a country that promotes the value of work and the importance of a healthy economy

Click here to see Part I of this series, in which we took a look at the arguments that "sexual orientation" is cover for pedophilia, and saw that it was, in actuality, a cover for the confusion that some people have regarding the meaning of the well-defined term "sexual orientation."

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I can't find fault with the NJ Law. It almost feels as if you can get enough people to form up some church and claim exemption to a whole host of rules...

I just wish ENDA included some provision on housing and services, to provide relief to events like ones in El Paso.

Have I been under a rock somewhere? Whats going on in El Paso? I mean I'll agree protections for housing and services is good, but I've not heard of any specific issues in El Paso recently. Care to elaborate?

A group of gay men were kicked out by homophobic security under the premise of "we don't want fag stuff around here".

Later, when the pressure came, they even made up some shit about how the gay men were behaving badly by swirling like ballerinas (what the fuck does doing a ballerina swirl do to disrupt the restaurant environment, who knows; they're even stupid in crafting their made up shit).

Okay, I'll be honest. I wasn't expecting Charlie the Unicorn in the story. You just made my day! (We're on a bridge, Charlie!)

Excellent talking points. I was hoping to see a takedown of anti-ENDA arguments from you -- It's nice to have a little more ammunition in the back pocket, so to speak.

Thanks, Austen. It just seemed so perfect. Shunnnnnnn....

I think the wild card in this discussion is Congress' passage of the Religious Freedom Restoration Act of 1993 (“RFRA”), 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. That act was intended to overturn Employment Division v. Smith,, 494 U.S. 872 (1990), in which the U.S. Supreme Court overturned decades of precedent in religious freedom cases and held that the government no longer had to demonstrate a "compelling interest" and narrowly tailored means to justify a law that does not expressly discriminate on the basis of religion but nonetheless burdens someone's exercise of her/his religion. 42 U.S.C. § 2000bb(a), (b). (In Smith, the plaintiffs had been fired and denied unemployment insurance because of their sacramental use of peyote during American Indian Church ceremonies. SCOTUS said that was perfectly fine, since the law punished them, not for their religion, but because of their drug use.)

In addition, to make clear the strength of their intent in passing RFRA, Congress said RFRA applies “to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of [RFRA];” furthermore, “[f]ederal statutory law adopted after the date of the enactment of [RFRA] is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 US.C. 2000bb-3. In other words, unless ENDA contains a specific provision stating that RFRA does not apply to its enforcement, the potential exists for the Alliance Defense Fund and others to argue that RFRA protects a religously-motivated employer's firing of an LGBT employee, unless the government can demonstrate that the governmental interest in prohibiting discrimination against LGBT people is "compelling," and that ENDA is "the least restrictive means" of furthering that interest. (BTW, the definition of "religious exercise" that cannot be burdened by the federal government absent a compelling interest is extremely broad and probably does apply to an employer's application of her/his religious beliefs to employment decisions. 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A).)

Since, prior to Smith, the compelling interest test presumably applied in Title VII cases in which the employers claimed exemption on grounds that hiring black people, or women, interfered with the exercise of their religion, the courts may have already disposed of this "compelling interest" issue in that context. I hope so. But, even then, if RFRA applies to ENDA, there will still need to be test cases in which the government will have to demonstrate that the interest in banning LGBT discrimination is similarly compelling.

So, what do you think? Does RFRA provide an additional defense, outside the religious exemptions contained in ENDA itself, to ENDA claims? If it does, it will vastly complicate the question of when religiously-motivated employers can and cannot refuse to hire, fire, etc. LGBT people because of their sexual orientation or gender identity.

An interesting question, Abby, and one which I considered including, but which I think merely a side issue. I do not think that an employer could demonstrate that firing someone, failing to hire them, or harassing them based on sexual orientation constitutes an exercise of religion. Of course they could make such a claim, but I do not believe a court would sustain it. While I understand that the definition of religious exercise was intended by the drafters of that legislation to be broad and cover everything under the sun, their wishes don't mean that a court will do so. Clearly, it doesn't cover beating someone up as a religious exercise. Equally clearly, discrimination or harassment based on race or religion would not be considered a religious exercise by RFRA. Why should firing someone based on sexual orientation be considered a religious exercise? Do you have any precedent to support that idea?

No, no case law in particular. I'm just familiar with RFRA, and a comparable Arizona statute (A.R.S. § 41-1493 et seq.), since I used both recently as the basis for an appeal of the trial court's denial of my Rastafarian client's request to instruct the jury on his religious freedom defense to charges of marijuana possession and production. (Unfortunately, the appellate court found that trial counsel had waived that issue by not properly raising it during trial, so we didn't get a decision on the merits.)

Given how broad it is, I think RFRA could create all kinds of havoc in all kinds of different cases, if someone actually starts using it. The 9th Circuit's recent denial of a RFRA claim by several Native American tribes may have narrowed the construction of that statute, so it wouldn't be such a danger, although I haven't read that decision myself.

BTW, I can imagine a scenario in which an employer sincerely believes, and argues, that her/his religion requires him to refrain from any association with or support of LGBT people. So, I'm not sure you can escape the reach of RFRA simply by arguing the decision to fire an LGBT employee couldn't be an "exercise of religion." The courts are quite clear that, in religious freedom cases, they cannot inquire into or rule on the legitimacy or appropriateness of a particular religious belief, once the claimant has introduced some evidence that her/his action was, in fact, based on religious doctrine or practice, and not just personal whim. I don't think it would require much more than a reference to Leviticus to meet that standard.

I missed something in the process of downloading this to take to our Oregon Congressman Peter DeFazio but I see that this is part II where is Part I or did I miss something? If I missed something could you forward this to me at information@mckenzievalleymarket.com (thanks)

Daniel, the link to Part I is at the end of this article, but here it is again for convenience: http://www.bilerico.com/2009/09/arguments_against_enda.php.

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