This week the U.S. Senate has passed legislation, the Employment Non-Discrimination Act, to make it illegal for any employer to discriminate based on sexual orientation or gender identity — regardless of religious objections or legitimate occupational concerns. The House should reject calls to take up the legislation now.
Almost all employers refrain from such discrimination already, so the legislation would not address a major problem in American life. Instead, it would modestly increase a real one (the amount of litigation in our country) and tilt the presumption of American law toward special protections for certain groups and away from freedom of association and one of its corollaries, at-will labor law. The measure amounts to a way of putting the federal government on record that there is nothing wrong with homosexuality or sex changes but that there is a lot wrong with freedom of association.
Certain historical and social circumstances may encourage and allow discrimination that is common, violent, and costly enough to justify so broadly restricting the right to free association. That exception to our preference for free association was rightly applied in the passage of the 1964 Civil Rights Act, but does not extend to all circumstances. It certainly does not hold here: This measure’s costs to liberty are broad, while the benefits are scant.
States that have passed various forms of ENDA have seen vanishingly few successful cases prosecuted under them — indicating either that violations are rare or that plaintiffs do not consider them worth addressing. The law would therefore do less to protect people than to help render a certain type of belief, held by a much wider share of the population than the protected minority, morally untenable, and effectively illegal. Gender identity and sexual orientation, especially as broadly defined as they have been by state-level plaintiffs and courts, are subjective, malleable categories, as opposed to biologically immutable ones such as sex and race, and they encompass behavior and attitudes that people should be free to judge personally.
ENDA regulates not just hiring and firing but also the terms of employment, meaning that employers likely could be sued for failing or refusing to provide the benefits to same-sex couples that they do to heterosexual ones. Further, it lacks a provision, applied in the Civil Rights Act to every protected category except race, called a Bona Fide Occupational Qualification. Employers are not allowed the defense that anything defined as sexual orientation or gender identity could affect how well someone might perform a job. An elementary school where teachers themselves should not present confusing messages about sex and gender to students too young to understand, or a workplace where, say, polyamorous arrangements or any other sexual behavior protected by the essentially unlimited term “sexual orientation” pose a real problem, would be stripped of their reasonable right to discriminate.
While the bill contains an exemption for a certain class of religious employers, it is not a robust one. It contains no protections for employers that lack a formal religious affiliation — who, as persons, retain freedom of religion even when they enter the marketplace. It ensures that nothing in it can be construed to interfere with employers’ legitimate concerns about practices of grooming and dress while making no similar provision for the free-exercise rights protected by the First Amendment and the Religious Freedom Restoration Act (though it does not explicitly overrule the latter).
That law clearly establishes that there must be a compelling state interest for the state to force individuals to act contrary to their religious beliefs, and that the regulation must be applied in the least restrictive manner possible. These are good guidelines, and are derived from the assumption that freedom of association and belief trump freedom from private discrimination. America’s laws should reflect that, and ENDA does not.