Keeping the GOP out of ENDA

Stephen Richer Law Student, University of Chicago
Font Size:

At the beginning of October, Christian Berle and Gregory T. Angelo wrote at Huffington Post about putting “Putting the ‘GOP’ in ENDA” — and the same publication is out today with a post from the president encouraging Congress to pass it. I’ll start November by pointing out that the GOP is not in ENDA — figuratively or literally — and it should remain that way.

Like Berle and Angelo, I’m a Republican. Like Berle and Angel, I’m a strong supporter of gay marriage. But unlike Berle and Angelo, I’m convinced that the same principles that lead to support of gay marriage — freedom and equality — should be applied to all government action, ENDA included.

Should ENDA pass, it will allegedly combat “discrimination based on an individual’s actual or perceived sexual orientation or gender identity by public and private employers in hiring, discharge, compensation, and other terms and conditions in employment” (emphasis added). Congress has proposed ENDA every year, save one, since 1994. This year, however, it could finally cross the finish line. In the Senate, all 55 members of the Democratic Caucus say they will vote for ENDA. The bill needs 60 votes to be filibuster-proof, and that means Republicans are needed. Already, some are on board: Mark Kirk (IL), Susan Collins (ME), Orrin Hatch (UT), and Lisa Murkowski (AK). Dean Heller (NV) said today that he will probably support ENDA, and Rob Portman (OH) looks like he’ll soon be joining the team.

At first blush, this looks great — a few Republicans are standing up for gays. Yay! This is something I’ve been cheering for since at least 2004. And we’re getting new blood in the movement. Orrin Hatch, for example, is far from supporting marriage equality, but his support for ENDA — according to proponents like Berle and Angelo — is a nice half-step that encourages better treatment of the country’s LGBT population.

Unfortunately, there’s significant philosophical differences between ENDA and marriage equality that should turn even pro-marriage equality Republicans away from ENDA. First, there’s freedom — a term that still rings true with most Americans. If a man marries another man, nobody is worse off because of it.  No private actor is forced into anything, and no private actor has to associate with the newly wed gay couple. Under ENDA, however, the arm of government extends into the right of non-interference with private business owners. If you have a business, and you’re somebody who doesn’t like gay people (shame on you!), then tough luck — the state has partial control of your business and can tell you what’s a valid reason for employment termination, and what’s not. Gay rights supporters should be especially sensitive to the majority using its power against others’ rights to non-interference (see Texas sodomy laws).

Then there’s equality under the law. We supporters of marriage equality ask that gay Americans be treated the same as all other Americans. People born heterosexual can enter a contract (marriage) that is celebrated by society and yields government benefits. Gay Americans should have the same opportunity.

ENDA, however, isn’t asking for equal. It’s asking for more equal. The law is specially crafted to protect homosexuals from employment discrimination. Homosexuals are designated as a special class that merits particular laws. It’s this same type of “more equal” definition that has led to programs like affirmative action in college admissions, something that 87 percent of Republicans object to.

Supporters of ENDA might ask “What’s the big deal? We’ve done this before; see the Civil Rights Act of 1964. Isn’t this the same?” No. They’re not the same. ENDA reaches into territory that the Civil Rights Act didn’t strongly implicate: religion. I know of no current, popular American religion whose adherents believe that racial discrimination is required. Sadly, this isn’t so with many of today’s more orthodox Christians and Jews (to name two of the many religious groups who feel this way) who see homosexual acts as sins and don’t want to got within 10 feet of perpetrators of homosexual acts. This, of course, is egregious, but it’s a religious belief, and we Americans are pretty keen on the idea of protecting beliefs, especially religious ones.

At this point, ENDA supporters will shoot back, “But ENDA has broad religious protections. That’s why people like Orrin Hatch support it.” ENDA does have religious exemptions. Sections 702(a) and 703(e)(2), for example, protect religious corporations, associations, and educational institutions. So if you’re a Catholic church, then you’re off the hook. But what if you’re a devout evangelical who happens to run a grocery store, but doesn’t want to hire homoesexuals for religious reasons. Then you’re out of luck.

Such a scenario can hardly seem far-fetched. A Christian photographer recently lost a suit for refusing — on religious grounds — to photograph a gay civil commitment ceremony. And an Oregon baker shut down his business for similar reasons. Such cases abound, and ENDA will move them into the employment arena.

ENDA violates two (allegedly) key Republicans philosophical tenets: freedom and equality. And there are practical problems too. Any current employer can tell you that hiring and firing can be a fraught affair that often prompts litigation. Threatened suits regularly involve Title VII discrimination claims. With ENDA in effect, these claims will only go up, and ENDA will further exacerbate the negative unintended consequences anti-discrimination laws have. Consider, for example, this paper that shows how laws “protecting” Americans with disabilities actually led to a decline in the employment of the disabled as a result of fear of litigation. If we continue to write more and more anti-discrimination laws that police private businesses, Barry Goldwater’s words will soon come true:

[We will] require the creation of a federal police force of mammoth proportions. It also bids fair to result in the development of an ‘informer’ psychology in great areas of our national life … These, the federal police force and an ‘informer’ psychology, are the hallmarks of a police state…

If supporters of ENDA object that the new law will actually bring about very little litigation, then why is it needed in the first place? If used very little, then gay Americans clearly have other employment options and would probably prefer to be aware of foolishly anti-gay employers when they come across one.

When asked about right-of-center ideological concerns with Civil Rights Act of 1964, Cato’s Jason Kuznicki wrote:

Stepping back a bit, it is bizarre and embarrassing to me that this should be the hill that anyone wants to die on in the name of originalism. Why don’t originalists work first in the most fruitful areas, and leave the doubtful ones for later?

The same could of course apply here. In the spectrum of government offenses to freedom and equality, ENDA wouldn’t even show up on the chart. But if, like me, you think that right-of-center Republicans should vote down anything that doesn’t mesh with freedom and equality, then ENDA should be stopped.