In a sign of how dramatically attitudes have shifted on gay rights, the Senate on Thursday passed the Employment Non-Discrimination Act (ENDA) with the support of 10 Republicans. As we have noted before, some of the objections to the bill, including concern about an explosion of litigation, are spurious.
There is another objection that deserves attention. Christian conservative groups argue that ENDA would interfere with freedom of religion. Ralph Reed wrote this week:
ENDA criminalizes hiring and promotion based on the subjective criteria of sexual orientation and gender identity — an often fluid standard that can be known only by violating an employee’s right to privacy. Employers, including schools, would be required to allow men to show up for work dressed as women, or women as men. Personal objections aside, this is an unnecessary disruption of the workplace.
It is also a dagger aimed at the heart of religious freedom for millions of Americans. The bill’s so-called religious exemption is vague and inadequate. Based on previous court rulings, faith-based charities may be subject to harassment and junk lawsuits. Like Obamacare’s nearly identical “religious exemption,” which turned out not to protect most faith-based employers, it is as porous as Swiss cheese.
Virtually everything in that statement is untrue. There is no “criminal conduct” involved, and there is no requirement to violate an employee’s right to privacy. If the employer has no idea what the person’s sexual preference is, he has an airtight defense. As for dress, we are talking about a minuscule number of people specifically identifying as transgender who are not simply doing this for “kicks.” The number of suits, as we have discussed, is tiny.
Now, the bill already exempts churches and other religious organizations. We have long respected a minister’s privilege, that is a zone of legal protection so religious organizations can fire and hire whomever they want; ENDA preserves that. So what about other organizations in which some religious connection is present?
Well, what about them? Is there a religious dictate that says you shall not work with a gay person? That transgender people should be paid less than others doing exactly the same job? We’re not talking about, for example, providing birth control or abortion-inducing medication, which arguably involves the employer in an act that violates his or her conscience. We do not permit, for example, someone whose religion prohibits women from working outside the home to bar women from working. We do not allow the owner of a fast-food chain who believes all adults should be married from excluding single people from his workforce.
Religious discrimination is no trivial matter, and deprivation of religious freedom is serious. But to raise religion as an all-purpose excuse for treating a group of Americans in the workplace differently is inappropriate and makes religion the handmaiden of bias. Prejudice masquerading as religion has no safe harbor in our legal and constitutional tradition. Whatever makes these people uncomfortable is not a protected religious belief exempt from the laws of civil society. Opponents have run out of credible arguments to oppose ENDA.