Rhetoric and Reality: Gay Rights Law Haunted by Rhetoric, Part 3

In Part One we looked at what the Employment Non-Discrimination Act (ENDA) proposes to do to protect gays against discrimination. In Part Two we looked at the argument that gays don’t meet the Supreme Court’s criteria as a suspect or protected class. In this installment we’ll look at the argument that the ENDA threatens religious liberty. Gary Glenn, President of the American Family Association of Michigan (AFA), makes this argument:

In jurisdictions where it’s already been adopted the language of the so-called “non-discrimination” act has itself proven to be discriminatory, violating the rights of individuals and organizations who oppose homosexual activists’ political agenda.

Under the same “sexual orientation” language proposed by ENDA:

* In Philadelphia the local Boy Scout council — if it refuses to allow homosexual scoutmasters — will now be charged $200,000 a year for office space it’s held rent-free for 60 years in a city office building.

* In numerous cities, such as San Diego and Berkeley, the Scouts are now refused use of city docks and parks.

* The Triangle Foundation has threatened to sue the city of Detroit unless it cuts funding to local Boy Scout troops, prohibits the Scouts from using city parks and facilities, and prohibits city fire and police stations from sponsoring Boy Scout Explorer posts.

Continued -

Glenn really gave a non-answer. He cited many examples like this, none of them having anything to do with employment discrimination. The Boy Scouts issue is quite separate. The Boy Scouts went to court and won a case declaring that, as a private organization, they have a right to discriminate against gays and atheists, which they do. Many cities, such as Berkeley and Philadelphia, have ordinances that prohibit giving any tax benefit or subsidy to organizations that engage in discrimination.  Berkeley will no longer offer free dock space at the city marina to the Sea Scouts and Philadelphia has now decided to charge the local scout council rent rather than allow it to use a city building rent free. Those cases are about whether the government must or can subsidize discrimination, an entirely separate issue from whether employers can discriminate.

I pointed out this distinction to Glenn and he fell back on a slippery slope argument, saying that the “term ‘sexual orientation’ appears nowhere in federal law. We oppose its being added in any context because it will serve as a precedent for what we know to be the end-game, including all the discriminatory impacts in the cases I cited.”

In other words Glenn was saying give ‘em an inch and they’ll take a mile. But remember, all of the examples he cited had to do with government subsidy of discrimination. The claim here is not only that the Boy Scouts and other groups can engage in discrimination, but that if the government refuses to subsidize it then the government is itself discriminating. But this is clearly false. If you want to claim to be a genuinely private organization with a right to discriminate then you can’t also demand that government subsidize your organization and give it special benefits. Many would argue that the government is forbidden by the 14th Amendment’s equal protection clause from subsidizing groups that discriminate.

As for the argument that this will violate the rights of religious groups, recall from Part One of this article that the ENDA actually goes to great lengths to exempt religious organizations. The law explicitly exempts any “religious corporation, association or society,” as well as all schools affiliated with any religious entity. It should be noted that this wasn’t really necessary; even without such language the courts would have granted such exemptions under either the Religious Freedom Restoration Act or what they call the “ministerial exception.” Churches have always been exempt from such regulations because the courts have always preserved the separation of church and state by refusing to get involved with matters of church doctrine and hiring. Remember, all this bill does is add sexual orientation to the Federal anti-discrimination statutes that already prohibit discrimination on the basis of religion. But churches are already exempt from that law. A Christian church cannot be forced to hire an atheist or a Muslim, for obvious reasons.

It’s also important to keep in mind what those who oppose the ENDA are really fighting for – the right to fire people, or refuse to hire them, solely for being gay. And it isn’t just that they oppose the government prohibiting such discrimination, they even oppose private companies with anti-discrimination policies that include sexual orientation. The AFA has been boycotting Ford Motor Co. for several years and one of the reasons is that Ford has a policy forbidding the firing of gays.

In May of this year at Ford’s shareholder meeting, one of the AFA folks who owns Ford stock, Dr. Robert Hurley offered a proposal to end Ford’s support for gay rights. Contrary to much of the public rhetoric concerning the boycott, this proposal wasn’t about the fact that Ford advertised in gay publications or sponsored events promoting gay marriage; that proposal actually demanded that Ford remove sexual orientation from its equal employment policy. What could this possibly mean other than that they actually want gay people to be fired just for being gay? It clearly is not just government coercion they oppose; they actively and positively are demanding that gays be fired, even by private companies solely for being gay.

But remember, the law already protects the very people making these arguments against such discrimination on the basis of religion. Ford could not fire someone merely for being Christian, so not only is the AFA demanding that gays be fired for being gay, they’re demanding that gays be denied the very protection that they demand for themselves. And yet the ubiquitous phrase we always hear is that gays are demanding ‘special rights.” One wonders how wanting the same protection already given to one’s opponents could possibly be construed as “special.” Ironically, the ones demanding that rights be “special” – that is, given only to them and to no one else – are those using the “special rights” rhetoric. Sean Kosofsky, director of policy for the Triangle Foundation in Michigan, sums it up clearly:

“Anyone who says that ENDA threatens religious liberty is lying. It does no such thing. It protects civil liberties, it does not restrict them. The religious right wants a special right to be able to fire gay people and that’s why they’re trying to block ENDA.”

The evidence clearly supports that argument.

Catch all of Ed’s series on ENDA here, and the entirety of the new “Rhetoric and Reality” series here.