Editor’s Note: This week the Senate is poised to take up the Employment Non-Discrimination of Act of 2013 (ENDA). The law would prohibit some religious business owners from the freedom to hire individuals who share the values of their business. President Obama blogged at The Huffington Post over the weekend in favor of ENDA. This law has wide-ranging implications that directly affect religious liberty. Andrew Walker, Director of Policy Studies with the Ethics and Religious Liberty Commission, has graciously provided an interview to help readers think through this controversial law. Read it below.
Q: What is ENDA?
This week, the Senate is poised to vote on S. 815, the Employment Non-Discrimination Act of 2013, an act that makes it illegal for employers to refuse to hire, fire, or otherwise discriminate if a person identifies as homosexual, heterosexual, bisexual, or transgender. It specifically relies on the categories of “gender identity” and “sexual orientation” (SOGI).
Q: Shouldn’t Christians be against the practice of employment discrimination?
Yes, of course, Christians should speak up for the inherent worth and dignity of all individuals, whether heterosexual or homosexual. Employment should be based on merit and skill. At the same time, government should respect the rights of employers—especially religious employers—to determine what are just hiring standards according to a religiously informed conscience.
Q: Why, then, are Christians expressing concern about ENDA?
The concern surrounding ENDA is its far-reaching implications on several fronts.
ENDA would signal a massive shift in civil rights law by enshrining the categories of sexual orientation and gender identity into employment statute. Traditionally, special protections in employment law have been a subset of regulations set forth in the 1964 Civil Rights Acts. Special protections have been ordinarily reserved and enumerated according to immutable and involuntary traits like race, sex, or ethnicity. ENDA is riding the wave of growing acceptance of homosexuality, a testament to the principle of incrementalism we’ve seen used as a policy strategy by the gay community.
While ENDA’s intent is related to employment, passage of the bill would signal the adoption of a view by the federal government that homosexual and transgender behavior are morally equivalent with heterosexuality, an equivalence that Christians who uphold a biblical sexual ethic will not agree with.
As a practical matter, ENDA teaches a view of human embodiment that Christians will strongly object to. Christianity embraces the body and self as an integrated whole; as unique creations that witness to the divine action and creativity of God through our being created male and female. Male and female are not arbitrary, socially imposed constructs. They are rooted in our biology. In contrast, the worldview behind ENDA assumes an “expressive individualism” where our bodies become instruments of the will, capable of being re-created according to preference and desire.
Q: What about religious liberty?
ENDA poses great problems for religious practice—particularly for business owners who are Christians. Though the bill makes a narrow exemption for explicitly religious institutions and employers, ENDA undermines the Constitution’s guarantee of religious freedom by preventing many employers with religious objections to homosexual and transgender behavior from conducting their businesses in accordance with the dictates of their faith.
While the bill exempts religious organizations covered by Title VII of the Civil Rights Act of 1964, it does nothing to protect religious employers whose businesses fall outside of the government’s list of approved organizations. The ERLC finds it especially troublesome that a code used to protect religious organizations from government interference would be the basis for government compulsion of other religiously affiliated or faith-based organizations to violate the dictates of their faith in their employment practices.
Additionally, we are concerned by language in the bill which is so broad that it opens the proposed law up to numerous claims of violation that will burden faith-based businesses not covered by the law’s narrow exemption. For example, the language prohibiting actions that “adversely affect the status of the individual as an employee or as an applicant for employment” is unclear. The mere presence within the place of employment of religious paraphernalia associated with a faith that objects to homosexual or transgender behavior may be construed by an employee as an act that “adversely” affects that employee’s status. We believe the language leaves open the possibility that a person could claim their status has been adversely affected by the mere presence of a Bible on an employer’s desk. We are deeply concerned by the potential chilling effect this language will have on the ability of religious employers to conduct their personal lives and their businesses in accordance with their faith.
All employees are entitled to dignity and respect, but ENDA provides special protections for particular behaviors that run contrary to Scripture and the Christian tradition’s view toward what advances human flourishing. And, further, though we agree that sexual orientation should not be a contributing factor in most employment situations, we cannot conclude that it shouldn’t be a contributing factor in every situation. We cannot agree that the government’s interest in creating this non-discriminatory environment is more important than the free exercise of religion and speech guaranteed by the First Amendment.
And while we disavow both hyperbolic sentiment and an “us-versus-them” mentality, passage of this bill will have the intended effect of further marginalizing those in culture who hold to views on human sexuality that conflict with the day’s reigning sexual worldview.
The ERLC is very concerned about the implications of this bill, and have said as much elsewhere.
Q: A lot of Christians I know are uncomfortable with appearance that opposition to ENDA somehow conveys that Christians are comfortable with discrimination.
This is an understandable concern. We follow a Christ who laid down his rights for the sake of those he came to save. Christians are right to be concerned about “rights” insofar as our “rights” are construed to mean mere autonomy. There’s a real tension here that Christians should acknowledge; a tension that isn’t made easier by simply saying “hate the sin; not the sinner.” Generally speaking, I don’t think, for example, that an individual should be denied a receptionist job on the basis of his or her sexual orientation in a place of secular employment. But an employer trying to run his business according to the teachings of the Bible should be able to deny employment to a person whose lifestyle denies and noticeably interferes with the core faith and values of the business; or hampers workplace morale.
Moreover, as my friend and former colleague Ryan Anderson has helpfully noted, unlike racist Jim Crow laws in the South, there is no evidence of widespread discrimination against homosexual or transgendered persons. In some sense, ENDA is a solution looking for a problem.
While not seeking to demonize or harass our homosexual or transgendered friends and neighbors, Christians can and should express concern about ENDA without caricaturing those whom we disagree with.