Deal W. Hudson
October 22, 2007
This week the U.S. House of Representatives will very likely vote to add “sexual orientation” as a category of persons legally protected from discrimination. If passed, H.R. 3685, the Employment Nondiscrimination Act (ENDA), will mean that homosexuals can bring lawsuits against employers they feel have discriminated against them because of their sexual orientation.
Although religious organizations are declared exempt, the bill, sponsored by Rep. Barney Frank (D-MA), still poses a threat to religious liberty because of differing state definitions of what organizations are religious.
Sexual orientation, by its very nature, is a private matter. But unlike other protected categories – race, religion, national origin, sex, pregnancy, age, disability – it’s a subjective term.
ENDA will practically require employers to ask about the sexual orientation of their employees. As a senior member of the Bush administration told me, “Your sexual orientation is whatever you say it is. If this bill passes, employers would be encouraged to discuss sexual orientation with employees, something that most people think is inappropriate.”
Jim Kelly, a religious liberty attorney in Atlanta, pointed out the further impact this bill could have on corporate culture: “Inevitably, a corporation will find itself in the position of having to fire an ineffective gay or lesbian employee. To avoid lawsuits for doing so, corporations will act preemptively to prove they are gay-friendly. Their lawyers and human-resource directors will insist that they meet self-imposed hiring quotas and promote gay and lesbian activities and foundations.”
And ENDA doesn’t apply solely to hiring, promotion, or firing decisions. It includes discrimination “against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation” (emphasis added).
In other words, corporations will be in the business of promoting homosexual culture and lifestyles. As Kelly puts it, “To avoid lawsuits, corporations will be working overtime to create a positive environment for gays and lesbians. Everything from company benefit offerings to corporate publications and employee parties will have to be choreographed to portray sensitivity to sexual orientation.”
Kelly went on to explain that, once these lawsuits are brought against employers for discrimination in hiring, the plaintiff’s attorney will ask questions like, “What did you do to promote the gay and lesbian lifestyle in your organization?” “Where is gay pride day?” “Why don’t you extend health benefits to partners?” “Why don’t you support your local gay and lesbian advocacy group?” “How many of your executives and board members are gay or lesbian?”
Once corporations are required to create gay and lesbian-friendly environments, religious liberty will be compromised. People of faith who believe that homosexual acts are sinful will be discouraged from saying it out loud. Catholics, who are taught to view homosexuality as an “objective disorder,” will have to keep that opinion to themselves.
Christians may, in fact, be viewed as possessing an animus toward gays and lesbians by virtue of their orthodox beliefs.
The senior member of the Bush administration put it this way: “ENDA would inhibit religious speech. Discrimination law works like this: If persons in a soup kitchen start talking critically about the gay lifestyle, homosexuals will feel unwelcome and could sue the employer. The net effect is to attack the core of religious liberty: right of self determination and association.”
ENDA is another example of the political left using the law as a tool for social change. There is no doubt that it puts orthodox Catholics at risk of being accused of creating a hostile working environment for gays and lesbians.
Even though ENDA exempts religious organizations from compliance, the very definition of “religious” remains ambiguous and tricky to apply uniformly across all 50 states. It’s almost a certainty that these exempted organizations would be caught up in a web of expensive lawsuits, initiated and coordinated by gay activists, simply to prove their religious identity.
The Civil Rights Act of 1964 was passed to create much-needed protection for African-Americans after more than a century of discrimination. The other protected groups – including gender, nationality, and disability – are objective and do not require an invasion of privacy to determine.
President Bush has stated that he is opposed to employer discrimination on the basis of sexual orientation; it is rumored that the White House assisted in hammering out the final version of H.R. 3685. ENDA will probably be put on the president’s desk in the next month.
Let’s hope the Congress and president look at the religious and cultural ramifications of making ENDA into law. This Act will give gay and lesbian groups a very sharp sword to wage in the culture wars.