ENDA and the Christian Response

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.

37 Responses to ENDA and the Christian Response

  1. JasonS November 4, 2013 at 2:12 pm #

    One thing that must be argued, should this pass, is the fact that campaign law has now accepted corporations as persons. This “person test” should then be turned against such as this to show that one cannot infringe upon said “person’s” religious liberties.
    Let’s pray, however, that ENDA doesn’t become law.

  2. Chris Ryan November 4, 2013 at 3:55 pm #

    So if IBM decides it wants to be a “religiously run” corporation, it can fire gay people? I don’t think that’s right. I don’t even think that’s Christian.

    Under this theory that corporations have souls, if my company’s CEO is a Jehovah’s Witness & wants to run his company according to religious principles, he can prohibit blood transfusions as part of our health insurance plan or, for that matter, fire anyone who does get a blood transfusion.

    A church is a religious organization and is exempt from this law, but a business is just a profit making endeavor and properly a part of it. Corporations receive a wide variety of benefits: Lower taxes and limited liability are just 2 of them. For this, its reasonable that they accept some limitations on what they can do. At least until I read in the Bible myself that corporations have souls.

  3. Nathan Cesal November 4, 2013 at 3:55 pm #

    Seriously?… “There is no evidence of widespread discrimination against homosexual or transgendered persons.”

    The author of the Q & A wants to protect employers’ ability to treat homosexual and transgendered persons differently… because, according to him, it’s not widely practiced now. And he trusts employers to do it justly.

    He wants to protect religious persons’ rights to treat gay people and transgendered people negatively (refusing employment on this basis is treating people poorly), but LGBT shouldn’t view the brandishing of religious paraphernalia in the workplace as setting an anti-LGBT atmosphere…

    • John Jones November 4, 2013 at 5:33 pm #

      I’m interested to see evidence of widespread discrimination, Nathan.

      It’s funny, I can be refused employment at a private firm for virtually anything, including many aspects beyond my control which don’t affect my ability to do the job one bit, but if it gets down to sexual orientation (how would the employer even know?) it becomes a civil rights issue. This march toward special status for LGBT individuals has been interesting to watch, if nothing else.

      • Nathan Cesal November 5, 2013 at 2:17 am #

        @John Jones

        Let’s see… the tides are changing, but when there is a years-long argument over GLBT inclusion in the boy scouts, military, pro and amateur sports there’s something up. When those in the entertainment industry remain closeted to help their careers something’s up. Companies don’t always offer benefits to same sex partners. Colleges have problems with transgendered people using a restroom. Etc. Etc. With all that going on, I’m supposed to believe that there isn’t widespread discrimination against gay and transgendered people as if all the employers and managers that support those things above magically play fair in the workplace? That’s laughable.

        • Shaun DuFault November 9, 2013 at 12:39 am #

          And yet, most people would not know unless that “orientation” was being worn on the person’s sleeve as a badge of honor.

  4. Bill Hickman November 4, 2013 at 5:24 pm #

    “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.”

    I think this is worth digging into – do Christian owners of secular businesses (e.g., a widget-making company or a retail store) currently fire straight employees simply because they disagree with their sexual lifestyles? For example, would a Christian factory-owner fire a straight male for ruining company morale by openly living with his girlfriend? I don’t think I’ve ever heard of such a case, and I think the overwhelming majority of Christian business owners do not think this necessary to protect the values of their businesses.

    Why, then, would it be necessary to fire a gay employee to protect a company’s “values” because we disagree with his/her sexual lifestyle? I can’t think why. Unless our “value” is “not being associated with gay people.” But I don’t think that’s a Christian value.

    • John Jones November 4, 2013 at 5:35 pm #

      I think you already have a cause of action for wrongful termination in almost every state jurisdiction, Bill. ENDA is unnecessary to protect against the facts of your hypothetical.

    • Ronnica Rothe November 4, 2013 at 6:41 pm #

      This was my primary thought as well. In our culture, there are too few opportunities for believers to rub shoulders with those who identify as LGBTQ. Working together is one place in particular where this could/should happen. I would love to see business owners who practice Christianity hire qualified people of all walks of life with the explicit purpose to live Christ before them and to love them practically.

    • Scott McCauley November 4, 2013 at 7:14 pm #

      If we need a law that prevents employers from discriminating against people who openly engage in homosexual sex, then we also need a law that prevents employers from discriminating against people who openly engage in premarital sex. Both such prospective laws are absurd.

  5. James Stanton November 4, 2013 at 6:08 pm #

    I came across the roll call for the House ENDA vote in 2007. http://clerk.house.gov/evs/2007/roll1057.xml

    My representative and failed VP candidate, Paul Ryan, voted for ENDA.

    • Liz grier November 5, 2013 at 11:05 am #

      I would venture to guess, however, that the forms and specifics of the law are different, not merely polemical.

    • buddyglass November 5, 2013 at 12:12 pm #

      Also Jeff Flake, Tea Party guy from AZ.

  6. James Bradshaw November 4, 2013 at 8:19 pm #

    Sexual orientation (note the word “orientation”, not behavior) is certainly less a choice than one’s religious affiliation, yet we have laws that make it illegal to fire someone for the latter.

    We can’t have it both ways. Employers should either be free to hire and/or fire those that they feel do not “fit” or they should not (especially when those characteristics are not immutable). If they should, then we need to remove the existing laws that forbid discrimination on religious grounds.

  7. Esther O'Reilly November 5, 2013 at 10:06 am #

    Denny, another thing to consider is that the American Psychiatric Association has recently decided pedophilia is an “orientation” vs. a “disorder.” This means that the language of ENDA could restrict employers even from hiring a pedophile.

    • Esther O'Reilly November 5, 2013 at 10:07 am #

      *from NOT hiring a pedophile

    • Mark Sudia November 6, 2013 at 12:11 pm #

      Well, if the employer is hiring people who will be working with children, such a restriction protects the children from harm. Or at least greatly reduces such violations of the children’s right not to be touched improperly.

  8. buddyglass November 5, 2013 at 12:04 pm #

    First an observation on the bill itself, then some thoughts on the Q&A:

    The point of ENDA isn’t to pass a bill. Its point is to make Republicans look bad. There is almost no chance it passes the Republican-controlled House. Its purpose, then, is to force House Republicans to hurt their reputation with moderates by opposing it. So while we can think in the abstract about whether it’s a good idea, realize that the debate is an entirely academic one (for now).

    Now to the Q&A. This section begs additional explanation:

    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.

    Given Walker’s own premise that hiring should be based on merit and skill, in what circumstances might a non-religious employer’s “religiously informed conscience” require that he ignore merit and skill and discriminate against a gay person? He writes later:

    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.

    For what it’s worth, laws that prohibit discrimination on the basis of race already violate religious freedom given some business owners have religious objections to, among other things, mixed-race marriages. One reason we’re (mostly) fine with violating their religious freedom because we don’t view their views as legitimately religious. That is to say even though the individuals who hold such a view may believe they are clearly part of orthodox Christianity, any objective examination of orthodox Christianity argues otherwise. So when we restrict their freedom to discriminate we are not, in fact, restricting their ability to practice Christianity.

    Which brings us to the above quote and the issue of Christian employers and homosexuals. If you believe the Christian faith clearly enjoins believing employers against hiring gays and lesbians then such a restriction is a legitimate violation of religious freedom. If, however, you recognize no such injunction, then restricting their freedom to discriminate doesn’t actually interfere with an employer’s ability to comply with the tenets of the Christian faith; only possibly his misunderstood version of it. Walker continues:

    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.

    This passage is interesting. He affirms that gays and lesbians shouldn’t be denied the receptionist job by virtue their being gay or lesbian. This seems to suggest there is no valid reason to not hire this person stemming from “religiously informed conscience”. Non-discrimination is simply the “right thing to do” in the absence of extenuating circumstances. One such extenuating circumstance he recognizes is a practical one: perhaps hiring a homosexual would hurt workplace morale.

    This prompts me to ask: Should we make a similar exception for such extenuating circumstances when it comes to racial discrimination? Suppose I’m a small business owner and all my employees are bigoted against blacks. Hiring a black person would significantly harm workplace morale and have a measurably negative impact on my bottom line. Should I be free to discriminate on the basis of race because I’m doing so out of “practical concerns” rather than racial animus?

    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.

    Yes and no. Large corporate employers have almost uniformly prohibited discrimination against gays, and they’ve done so voluntarily. Mostly because of the “shaming” efforts of groups like the HRC. The same can’t be said of small businesses, which can, for the most part, discriminate against gays with impunity. Is such discrimination “widespread”? Not to the same extent experienced by blacks during Jim Crow, but neither is it “exceedingly rare”. I would guess that it’s mostly limited to small businesses located in communities that would be supportive, rather than condemning, if it became public knowledge that the business discriminates against gays.

    • Esther O'Reilly November 5, 2013 at 4:47 pm #

      buddyglass, there are other factors to consider. What does it mean for a person to be gay? It means he’s attracted to people of the same gender. So what happens when your new gay employee becomes strongly attracted to one of your other workers of his same gender? This isn’t your typical “office romance” anymore. In a normal heterosexual context, two workers who liked each other would go out on dates and possibly (hopefully) get married. Homosexuality twists and changes all of that.

      • James Bradshaw November 5, 2013 at 5:06 pm #

        Esther asks: “So what happens when your new gay employee becomes strongly attracted to one of your other workers of his same gender?”

        What about it? Unwanted advances are unwanted advances, regardless of the gender. Sexual harassment laws aren’t going to change one bit.

        By the way, I’m one of three gay men on a team of about 30 IT professionals for a very well-respected corporation. There’s never been a single occasion for concern of the kind you’re referring to, although perhaps it’s because all three of us have been partnered for 3-10 years. Even if we weren’t, it’s absurd to suggest that we’d be necessarily any more interested in our co-workers than our heterosexual counterparts.

      • buddyglass November 5, 2013 at 5:26 pm #

        If a gay employee makes unwanted sexual advances toward a straight employee then the gay employee should be let go. Just like a straight employee should be let go in the same circumstances. There’s a threshold here, though. “Asking out on a date” doesn’t constitute “sexual advances”.

        In your hypo, the gay employee who is strongly attracted to a straight employee should deal with it and leave that person alone. This is exactly what millions of straight employees do every day when they find themselves attracted to a coworker who’s already in a relationship or is just uninterested in them for whatever reason.

        • Esther O'Reilly November 5, 2013 at 9:40 pm #

          Actually, I was even more exploring what happens when the affection is reciprocated. What then?

          • James Bradshaw November 5, 2013 at 11:12 pm #

            Esther: I’m not sure what you’re getting at. If it’s reciprocated, it’s not an issue of harassment.

            That being said, I think it’s not very prudent to get involved with co-workers (whatever the gender), especially if there’s a difference in rank. If things don’t work out, it creates tension and potential conflict in a place where we spend at least one third of our week. If they do work out, it creates a potential risk for accusations of favoritism.

            • Esther O'Reilly November 6, 2013 at 9:08 am #

              It’s not harassment, but it would change the work atmosphere dramatically. A lot of people would find it needlessly obtrusive to be trying to focus on their job while a homosexual romance is going on. It’s simply not the same as boy meets girl.

  9. buddyglass November 5, 2013 at 12:08 pm #

    Here’s an idea that just came to me:

    What if the govt. passed ENDA, but created the ability for employers to “opt out”. Ditto for all other forms of discrimination: race, sex, nationality, etc. However, the list of companies that have “opted out” (for each protected group) is public and searchable.

    In other words, you’re free to discriminate any way you choose, but you can’t do so while pretending you’re not. The “opt out” list would, presumably, be used to organize boycotts and inform the consumer behavior of folks who oppose such discrimination.

  10. buddyglass November 5, 2013 at 12:25 pm #

    One other thought: If a gay (or supportive) business owner decides that he cannot, in good conscience, hire an employee who is opposed to s.s.m. because that employe’s views would “interfere with the core faith and values” of his business, does he get to discriminate as well?

    Just making sure everybody’s on board with that.

  11. Ian Shaw November 5, 2013 at 1:34 pm #

    Esther, if that’s true, it should appear in the DSM-V shortly.

    • Esther O'Reilly November 6, 2013 at 9:09 am #

      Whoops, lost this comment—I was pointing out that since the APA has now declared pedophilia an “orientation,” that’s very significant given the wording of ENDA.

  12. Ian Shaw November 5, 2013 at 5:50 pm #

    Buddy,
    “If a gay employee makes unwanted sexual advances toward a straight employee then the gay employee should be let go. Just like a straight employee should be let go in the same circumstances. There’s a threshold here, though. “Asking out on a date” doesn’t constitute “sexual advances”.”

    If a straight male asks a straight female out on a date at their workplace, you’re telling me the woman has no grounds to say that it was a sexual advance and get the male fired? Call it sexual advances or not, there is “workplace conduct” and asking a co-worker out on a date can get your fired, regardless of any implication of sex or not.

    The women in my example only needs to say that she was made uncomfortable and poof, that guy is gone. I’m a married man. If a single female coworker asks me out on a date, you’re darn right it’s going to make me uncomfortable working with that person. Not a pleasant work environment. that’s all it takes.

    • buddyglass November 5, 2013 at 9:51 pm #

      “If a straight male asks a straight female out on a date at their workplace, you’re telling me the woman has no grounds to say that it was a sexual advance and get the male fired?”

      Barring situations in which the person doing the asking is the boss of the person being asked, yes, I’m saying there are no grounds.

      “Call it sexual advances or not, there is “workplace conduct” and asking a co-worker out on a date can get your fired, regardless of any implication of sex or not.”

      Not where I’ve worked. IBM, at least. All my other employers have been too small to have a written policy.

      “Not a pleasant work environment. that’s all it takes.”

      This is not true. I would bet you money that the H.R. depts. of most large employers would not fire a male employee simply for asking a female coworker (once) if she’d like to go out to dinner sometime.

  13. Brett Cody November 6, 2013 at 9:46 am #

    There seems to be something altogether wrong with bringing sexuality into the workplace. ENDA will undeniably bring it front and center.

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