Rhetoric and Reality: Gay Rights Law Haunted by Rhetoric

This is the first installment of what will be an ongoing series examining a particular issue and the political rhetoric surrounding it. We intend to try to correct what we believe is a major deficiency in mainstream journalism, where the practice is generally to report the arguments made by two sides without making any attempt to analyze the truth or validity of those arguments. As a result of this practice the media often present two sides in a manner suggesting that the sides are equally plausible even when some of those claims are transparently false and contrary to the evidence. We believe that part of the job of a responsible journalist is to evaluate such arguments and to point out when they’re false, illogical or unsubstantiated and that is exactly what we intend to do – cut through the rhetoric and get to the core of what is true and supported by the evidence and the weight of logical argument.

Today we’re going to be looking at the Employment Non-Discrimination Act of 2007 (ENDA), a bill currently pending in Congress that would add sexual orientation to the Federal anti-discrimination statutes. The bill is designated as HR 3685 and it has been through committee hearings and passed on to the full House for consideration. Though it has not yet come up for a floor debate or vote, the debate over the bill has been raging in the media for quite some time. The battle lines in that debate are quite predictable and fall along the same lines as virtually any public policy that deals with equal rights for gays, with pro-gay rights groups, such as the Human Rights Campaign on one side and anti-gay groups, such as Focus on the Family and the American Family Association on the other.

The rhetoric from both sides also follows the predictable script we’ve seen acted out on such issues time and time again; the pro-gay side frames the issue as one of preventing discrimination and giving gays the same rights and protections that others have,while the anti-gay side frames the issue as one of religious freedom, asserting that the bill is a threat to the rights of those who object to homosexuality. Before we can begin to evaluate these arguments we have to know what the proposed law actually says. ENDA is not standalone legislation; but is an amendment of existing Federal anti-discrimination legislation that began as the Civil Rights Act of 1964. More technically, this is known as Title 42 of the US Code, chapter 21, sub chapter VI. The key portion of that current law reads:

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It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

That means that at the Federal level it is already against the law to refuse to hire or to fire someone on the basis of his or her race, color, religion, sex or national origin. The ENDA, as currently written, adds one more category to that list, prohibiting employment discrimination on the basis of “actual or perceived sexual orientation.” In other words, under ENDA an employer could not refuse to hire or fire someone just because the individual is gay, or because the employer thinks that person is gay (but note that the wording works both ways: it also would prohibit firing someone for being straight). It also must be noted that ENDA contains an explicit exemption for churches and many other religious organizations. The Act defines a religious organization as:

(8) RELIGIOUS ORGANIZATION- The term `religious organization’ means–

(A) a religious corporation, association, or society; or

(B) a school, college, university, or other educational institution or institution of learning, if–

(i) the institution is in whole or substantial part controlled, managed, owned, or supported by a particular religion, religious corporation, association, or society; or

(ii) the curriculum of the institution is directed toward the propagation of a particular religion.

So virtually all religious organizations are exempted from the law. No church, religious school or explicitly religious association or society will be required to hire gays, lesbians or bisexuals. Now that we’ve laid the groundwork and established what ENDA does and does not do, in Part 2 we’ll begin to examine the arguments for and against the legislation.