(Bill O'Leary/The Washington Post)
The Supreme Court(Bill O’Leary/The Washington Post)

Conservatives opposed to gay marriage have argued they don’t harbor animus toward gays but believe that traditional marriage has a special status in our society. I don’t agree with that sentiment, but I don’t think that makes every person opposed to gay marriage a bigot. But, I say to my friends on the right, you run out of excuses when you oppose efforts to prevent discrimination in the workplace, ihncluding the Employment Non-Discrimination Act (EDNA).

In essence this is an argument for allowing different treatment — that is discrimination — of people purely because of their sexual orientation, not because of their behavior or qualifications. The arguments opposing federal legislation opposing nondiscrimination toward gays and transgender people are pathetically weak.

It isn’t an inherent trait like race.” Well, neither is religion and marital status and employers are prohibited from discriminating on these grounds.

It will subject schoolchildren to discussions of homosexuality.” (This is an actual argument.) Nondiscrimination has nothing whatsoever to do with what is discussed in a classroom or what standards of behavior teachers or other professions may be subject to.

It will bring on lawsuits.” If taken to its logical extreme, we should remove all discrimination protection in the name of litigation reform. As a former labor lawyer, I can attest that many suits claiming discrimination based on race, gender or other status are frivolous, but the standard of proof in these cases is not easy, and, to be blunt, we live with a lot of frivolous litigation. (I am all in favor for loser-pays and other means of deterring frivolous claims.)

In states in which sexual orientation is protected, there has not been an explosion of litigation, and the claims remain a sliver of the total number of discrimination. For example, in California in 2011, more than 18,000 employment discrimination claims were filed; a mere 727 of them were on the basis of sexual orientation, and that number has been remarkably constant over a 10-year period.

Employers don’t necessarily know if an employee is gay.” Well, then, that’s a defense. The same is true in cases of religion, ethnic origin, marital status and other protected categories. The burden of proof is on the employee.

There may be good arguments against the Employment Non-Discrimination Act (e.g. vagueness on transgender protection), but none of the common arguments cuts it. It is very hard to reach the conclusion that opposition is based on anything but personal aversion to gays and transgender people. This is not a matter of an institution like marriage, dating back thousands of years. It is rank prejudice, plain and simple.

 

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.