The United States Senate just passed
a bill to be voted on called the Employment Non-Discrimination Act, better
known as ENDA. This bill would ban employers from firing, refusing to hire or
discriminating against workers or job applications based on their sexual
orientation or gender identity. The Senate vote to hear a debate on the bill ended
up being 61-30,
clearing the 60-vote procedural Senate hurdle by one vote. The vote results showed seven
Republicans crossing party lines and affirmed the passage of the bill to be
debated among Congress members. This bill is groundbreaking,
considering that the Senate has not deliberated a federal nondiscrimination law
concerning sexual orientation since 1996, and it is the first nondiscrimination
bill to include the protection of transgender people. Federal nondiscrimination
laws are already in tact to protect workforce discrimination on the basis of
race, religion, gender, and a number of other factors. However, it still
remains legal in most states to fire or refuse to hire people because of their
sexual orientation. Only 21 states and the District of Columbia offer
protections to people of all sexual orientations.
There is one big concern for
Republicans: the religious implications of a bill like this. If there is a
concern for Republicans, there is a concern for everyone because the bill will
not be passed through the House without the consent of both political parties. The
Catholic faith is leading the loudest
protest to the bill, saying that their constitutional guarantee of free-exercise
is infringed upon if they are not offered an exemption from the implications of
this bill. Catholic’s state that they are vehemently against “unjust
discrimination,” including those who experience same-sex attraction. The Church
basically says that the same-sex attraction is okay, but if one actually acts
of the attraction that is a whole other story, and the church is asking for the
right to discriminate based on “conduct,” rather than just “status of sexual
attraction.” A murky distinction if you ask me…
Three bishops from the Catholic Church wrote a letter
to the US Senate explaining the problems they see in the ENDA bill. The Church
wants an exemption from the bill because they believe it has five fundamental
flaws and ultimately impedes on Catholic followers’ free-exercise of religion. The
five flaws are that the ENDA bill: lacks a BFOQ exemption, needs status/conduct
distinction, supports marriage redefinition, rejects the biological basis of
gender, and threatens religious liberty. For our purposes, only the first and last
points are relevant towards the constitutional debate, however the other points
are well articulated and entertaining if you’d like to read them in the
hyperlinked letter above.
The first complaint is that the Employment Non-Discrimination
Act does not have a BFOQ exemption. A BFOQ is a “bona fide occupational
qualification,” for cases where employers are offered an exemption to the
nondiscrimination laws because they see that it is not unjust to consider
certain aspects of job applicants. The Church argues that only racial
discrimination does not allow a BFOQ, and that discrimination on the basis of religion,
sex, and national origin discrimination do offer BFOQ exemptions. Therefore,
the church is asking for a BFOQ exemption because they argue that if they are
not offered one, sexual orientation is being put on the same playing field as
race and racial discrimination.
The second complaint is that the Catholic religious liberty and constitutional right
to free-exercise is being challenged by the nature of the ENDA bill. The
Catholic Bishops argue that ENDA could be a way to punish what many religions –
including the Catholic religion – teach. Thus, arguing that the bill, and
therefore the government, is implying that follower’s of the Catholic faith
will be punished if they act in accordance to their religious doctrines.
As for the BFOQ argument, it is compelling and
something I did not know before. However, once I researched more I found out
that this statue is rarely used, and courts have interpreted it very narrowly.
According to Title VII, race or color is not included in the BFOQ because the
state acknowledged that there couldn’t be any reason that would justify
discrimination on the basis of race of color. These are the basis that allow
discrimination under the BFOQ:
“In
order to show that a discriminatory action was allowable as a BFOQ, an employer
must prove:
1.
There is a direct relationship between the protected
characteristic and the ability to perform the job duties;
2.
The bona fide occupational qualification directly relates to
the “essence” or to the “central mission of the employer’s business”; and
There
is no less-restrictive, reasonable alternative available to the employer”
The court has made these guidelines specifically strict and very hard to apply. One of the few
cases where a BFOQ was awarded was in International Union, UnitedAutomobile, Aerospace & Agricultural Implement Workers of America, UAW, et.al. v. Johnson Controls, Inc. In that case, the employer established
a policy excluding fertile women from working in a position that required
exposure to high doses of lead, in order to protect the possible unborn fetuses
from damage due to the lead exposure. The courts have never approved this
BFOQ exempt status to a group of people, and it is hard to believe that the
state could award it to a group as large and as powerful as the Catholic
Church.
For the
second argument the Church makes, I can see that there may be a burden on the religion. However, their free-exercise
burden is outweighed by a compelling state interest to end discrimination on the basis of sexual orientation. If the Catholic Church were to
receive this exemption, it would apply to other religiously affiliated
institutions beyond just churches, such as hospitals. The state also has a compelling interest here
to intervene to ensure that the hospital has, let's say a heart surgeon, who is most
qualified for the job of saving people’s lives, regardless of his or her sexual
orientation.
It was
found that there are roughly 8.2 million gay and
lesbian employees nationwide according to estimates released by the Williams
Institute at UCLA in which researchers drew their estimate from U.S. Census
data on the public- and private-sector workforce. If the government offers the
Catholic Church an exemption, there could be 8.2 million Americans without a
job due to discrimination—that doesn’t sound very American to me. Therefore,
the state has a compelling interest to deny the Catholic Church this exemption
because human rights and equality are secular American values that, in this
case, trump religious free-exercise.
2 comments:
I agree with this. I think that if the state had a compelling interest to prevent racial discrimination in the Bob Jones University case, they certainly could apply the same principles here. I also think that that this would be rightly so, since allowing a homosexual man or woman to work for you should not be seen as violating your religion. In a few years I think that Catholics will be just as embarrassed by these attempts at discrimination as they are today about their racial discrimination attempts. I also find it interesting to point out that the Catholic church also forbids pre-marital sex, but do not have the ability or desire to discriminate in hiring based off of whether a person engages in this practice.
I agree with Gabby. The arguments from the bishops from the Catholic Church should not allow them to be granted the exemption. With regards to their religious liberty, this law would not prohibit them from exercising their religion. By employing those people of a sexual orientation viewed as contradictory to their religion does not impede them from exercising their own religion. I also agree that even if their free exercise were in any way hampered, the there would still be a compelling state interest to end discrimination. This law does not cause a burden substantial enough to allow an exemption.
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