The Politics of ENDA and Catholics

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.

I will now, respectfully, counter each argument the Church has offered. I wish to advocate that the ENDA, as it is, does not place enough of an infringement on Catholic’s free-exercise of religion. To me, the factt that a term such as “unjust discrimination” even exists is questionable, at best. All discrimination is unjust no matter what basis it lies under. I do not find the distinction between same-sex attraction, and same-sex action that the church lays out compelling. The Church basically approves of celibate people who have same-sex attraction and hide it by not acting on it, and suggest that it is "just" to discriminate against sexually active homosexuals and that discrimination should be protected in law.

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.