ENDA’s Threat to Religious Liberty

on August 6, 2013

– Photo credit: www.stjohnchester.com

The conflict between homosexual liberation and religious liberty appears ready to reach a new level of intensity with the possible passage of the Employment Non-Discrimination Act (ENDA). First proposed in Congress in 1994, and repeatedly reintroduced in each Congress since then, it would recognize homosexuality as a protected or “suspect” category with respect to employment in federal law. This in itself moves the federal government from a position of neutrality (already badly compromised by Supreme Court decisions) to a position of stigmatizing opposition to homosexuality. While current Congressional bill contains an exemption for religious organizations, there are serious concerns about whether it will prove adequate against litigation by activists.

 Antidiscrimination law and policy has steadily expanded over the last five decades since the passage of the Civil Rights Act of 1964, which prohibited discrimination in public accommodations and employment based on race, religion, national origin, and sex. Religious organizations such as churches, church schools, or certain other religious organizations are not bound with respect to religious discrimination, but for non-clerical employees, they are bound with respect to the other categories. The so-called “ministerial exception” recently affirmed by the Supreme Court gives a constitutional exemption from all antidiscrimination categories in the case of clergy and religious instructors.

ENDA would add sexual orientation this list of categories with respect to employment discrimination. Like the Civil Rights Act, it would apply to organizations with 15 or more employees, and would cover businesses owned by religious employers, so that exemption from the law is dubious where there is question as to how far an organization itself can be characterized as “religious organization” as distinct from its owner. While religious “educational institutions” are specifically mentioned in Title VII of the original Civil Rights Act, religiously affiliated organizations may need to show that they are sufficiently “religious” to qualify for exemption.

The text of the current bill (S. 815) moving through Congress appears to give a broad exemption to religious organizations; the law simply does not apply to them. However, activist organizations such as the ACLU want only houses of worship to be exempt. This would mean that all other religious organizations such as religious schools, charitable organizations, publishing houses, broadcast organizations, and whatever else might not be a house of worship would be bound to hire, retain, and refrain from discriminating against homosexual employees in the functioning of the organization. Another way of putting this is that Christian organizations, other than churches, would not be able to require Christian morality of their employees. In a related article to the one cited above, the ACLU explains that religious organizations other than houses of worship should only be able to discriminate on the basis of religious affiliation, and that other categories of anti-discrimination law (such as race or sex) apply to them in existing law. Since “sexual orientation” is proposed to be added to the list of categories, it too would be a nondiscrimation category for the many Christian social service organizations that advance the gospel by education and social service.

The problem with the secularist logic is that religious exercise involves much more than religious ceremonies, and that religious educational and social service organizations exist principally to perform a religious function. Healing the sick or educating the next generation may not be religious ceremonies, but for religious organizations they are done as an exercise of religion; these organizations would not exist except to perform their religiously motivated work, and thus they must necessarily function by religious standards, not secular standards.

The need for religious organizations, other than houses of worship, to be able to regulate themselves, including in their employment decisions, on religious standards was well illustrated in the last decade by the saga of the Christian Horizons ministry in Canada. Like Europe, Canada is further advanced in secularist restrictions on religious freedom than the United States, with restrictions on speech and human rights commissions monitoring society for “discrimination.” This Evangelical ministry to the disabled had its employees sign a “morality statement” before employment, agreeing, among other things, not to engage in homosexual behavior (or adultery, fornication, or lying). Christian Horizons was fined in 2008 after a lesbian employee who had signed the statement years before brought a legal action against it. In a very incisive decision two years later, an Ontario judge restored Christian Horizon’s ability to continue to require Christian morality (including sexual morality), of its employees, noting that the organization “would not be doing this work of assisting people with disabilities in a Christian home environment but for the religious calling of those involved.” And so it is with Christian primary and secondary schools, universities and colleges, charities like Christian Horizons, publishing houses, and broadcasting networks and stations.

The impact on businesses owned by religious proprietors which seek to incorporate religious commitment into the life and work of their business and which do not qualify as religious organizations is not avoidable if the bill passes, and could involve more than questions of hiring and firing. Even with respect to hiring and firing, the loss of religious liberty must be noted, because Christian proprietors of “nonreligous” business organizations will no longer be able to require Christian sexual morality of their employees, and in that sense no one will be able to have a “Christian business” (or a “Jewish business” or a “Muslim business.”)  This is in considerable measure because a behavior based category has been given protected status in antidiscrimination law, rather than a category with immutable characteristics (such as sex or race). However, in addition to the issue of hiring and firing, workplace discrimination may be claimed where views are advanced in the workplace critical of homosexuality, or religious employees might choose to post Bible verses in their work area, as was noted by Focus on the Family’s CitizenLink.

This illustrates the problem of the loss of state neutrality, already noted. As opposition to homosexuality becomes increasingly stigmatized, there is no legal protection against employer discipline or dismissal for expressed opposition, and this is occurring. Thus the ENDA is less about employment discrimination than it is about enlisting the state in support of one side of a public controversy; in itself, this should be a reason why the bill should not be enacted, to which may be added the prospect that the current bill’s religious exemption will not survive a court challenge by groups opposing it.

Employment law prohibiting sexual orientation discrimination already exists in a number of states. In 2009, the Becket Fund for Religious Liberty analyzed antidiscrimination laws in 50 states, finding that in the 20 states with some degree of antidiscrimination law pertaining to sexual orientation, there was a measure of protection for religious organizations (except in Wisconsin, where religious organizations have no protection). The concern of the study was with the effect of same sex marriage in the antidiscrimination environment, and it was noted that of 33 states prohibiting marital status discrimination, only 14 had religious exemptions of some nature. Thus, these laws would be triggered to prevent religious organizations from enforcing religious standards against homosexuality if same sex marriage is instituted there.

Legislative action to give religious organizations protection from marital status discrimination claims is of course possible in these states, but any such action, as well as the protections from state sexual orientation laws themselves and the exemption of religious organizations from the proposed federal ENDA may be attacked in litigation as “giving religion a license to discriminate.” But antidiscrimination standards are secular standards, and cannot be imposed on religious activity without destroying its religious character. There is no point in the activity of a religious hospital or school unless its activity is authentically religious in nature.

This special protection needed for religious activity is not to concede the secularist claim that religious doctrine and activity are “irrational.” Religious doctrine offers itself as an apprehension of the ultimate truth and necessary to giving meaning and value to life; depending on the variety of religious belief involved it may employ reason to get there, and in any case cannot be judged by the state because people who disagree with it are offended. The U.S. Conference of Catholic Bishops offered its reasons for opposing the federal ENDA in a proposed constituent letter to senators published after the Supreme Court’s recent Windsor decision, which voided part of the Defense of Marriage Act and once again attacked Christian sexual morality as irrational hate. The bishops declared that to the contrary, Christian doctrine is based on fundamental truths about the human person readily ascertainable by anyone. The court’s reasoning overlooks this, apparently in an effort to give the injured feelings of homosexuals priority above all else. The proposed federal ENDA will however, be a basis for holding that natural marriage in the states lacks any “rational basis,” as state supreme courts have held that state ENDAs do. Defending marriage is thus another reason to oppose the federal ENDA, in addition to protecting the right of Christian organizations to serve God, as they must, in accordance with his precepts.


  1. Comment by Christian on August 6, 2013 at 11:26 am

    People are gay, whether you like it or not. And, as statistics show, they’re more likely to be discriminated against in housing, employment, and in a number of other ways.

    Imagining that somehow having to be nice to, and not discriminate against, GLBTQ persons is infringing on your ‘religious liberty’ shows that you really don’t understand what ‘religious liberty’ means and confuse it with conservative Christian exclusivity.

    Your position is, well, unChristian, because you’re arguing that people should be able to discriminate and exclude GLBTQ persons simply because you find them “icky”.

    You, sir, make Jesus weep.

  2. Comment by Dan H on August 6, 2013 at 1:20 pm

    I’m always amazed that non-Christians set themselves up as experts on what constitutes Christian behavior. Who has a clearer idea of what “Christian” means – the people who read the Bible and attend church, or political activists who see the church as an obstruction to their goals? How exactly does it “make Jesus weep” that Christians take sexuality and marriage seriously?

    To the person who posted this comment: do you really think that churches exist for the sole reason of harassing gays and lesbians? We probably wouldn’t be discussing sexual issues at all, except that we live in a society that shoves sex in our faces 24/7. I can’t speak for every Christian, obviously, but my goal in attending church is to socialize with other Christians and to grow in spiritual maturity through our Sunday school lessons and sermons. Discriminating and excluding are not the goals, but apparently outsiders see it differently. Christians are not “haters,” but apparently the only way we can convince the activists that we aren’t haters is by caving in to all their demands, which would mean ceasing to be Christians. I may have to live in a trash culture but I don’t have to conform to it.

    Legally, we Christians will probably lose this battle, but it’s still worth fighting. I’d rather be on the right side than the winning side.

  3. Comment by Christian on August 6, 2013 at 3:29 pm

    I’m never amazed that, to people who put God in a very small box, anyone and anything outside of that box is labeled “non-Christian”.

    In fact, Dan, I’m a Christian, been one all my life. I have a degree in theology and am a proud member of the UMC.

    You can take marriage and sexuality seriously without working to obstruct laws that prevent discrimination. Fighting to keep it legal to discriminate against GLBTQ persons in terms of employment is lobbying to exclude and discriminate, which is what makes Jesus weep.

    Conservative people of faith, throughout history, have used their faith to oppose most social progress. Whenever the tent gets bigger, there’s people like you at the door trying to keep people out.

    What you’re actually saying is GLBTQ persons are not only not worthy of the grace and love of God (unless they change), but they’re also not worthy of the full benefits and privileges of being an American citizen and they should be kept in as second-class citizens.

    Living with, working with, and developing loving friendships does not equal “stopping being Christian”. In fact, I would argue, that living with and attempting to codify discriminatory attitudes like yours is when Christians stop being Christians.

    Finally, this is a Constitutional Republic, not a theocracy. If you’re basing your opposition to EDNA solely on faith and not legality then, well, you don’t understand how America works.

  4. Comment by Dan H on August 6, 2013 at 4:52 pm

    Funny that you fear “theocracy,” but you are pushing to impose your definition of marriage on the rest of us. But that’s OK, right, because Jesus told you directly that this is the right thing to do? People who stand up for morality are – what was the phrase – “making Jesus weep.”

    I’m not surprised you’re a UM. I’m one of the many many thousand of ex-UMs. Guess why were ex? We watched the denomination turn into a forum for every sexual minority on the planet. But they kept Jesus – the name, I mean – because it was a convenient way of browbeating the laity into going along with the agenda. In the mainline denominations, the “second-class citizens” are the conservatives. So we leave and find churches where we’re not treated with contempt.

    People like me are not trying to “keep you out” of the church. People like me LEFT the church, left it to the tender mercies of left-wing ideologues who have no scruples about using religion for secular purposes. You sound like you’re accustomed to pitching your message to very compliant laity. The clergy are all in your court already, given the lovely job the UM seminaries do on secularizing all the students. So your “degree in theology” doesn’t mean much. If the seminaries were honest they would start awarding the M.Ideol. degree, because that’s what an M.Div. from a liberal seminary is. John Wesley could light up all England from the energy of his spinning in his grave. Men marrying men – yep, that was why Jesus Christ came to earth, wasn’t it? Forget all that archaic “sin” stuff. the only sinners are the dinosaurs who stand in the way of the left.

    Good luck with those African UM delegates who are proving so troublesome to the American UM lefties. It’s very very tempting to call those who oppose them “racists.” African conservatives versus gay ideologues. Trust me, this is a delight to watch. I’m rooting for the Africans.

  5. Comment by Kay Glines on August 6, 2013 at 5:54 pm

    I gather that “Christian” feels very strongly about this issue. This is one aspect of the whole movement that I find most disturbing, this very harsh and accusatory tone. What happened to Christian humility and gentleness? I’m not hearing a gentle request for acceptance, I’m hearing an angry, hostile demand, as if Christians were guilty of some horrible sin. The general shrill tone coming from the liberals does not bode well for the churches in the days ahead. We can look forward to churches and individual businesses run by Christians being dragged into court by some very vindictive activists. Sadly, it appears that some of those activists will be calling themselves “Christian” too. The hatred that the religious left feels for Christians is very disturbing. In their universe, we seem to be the Satan.

  6. Comment by Donnie on August 6, 2013 at 5:46 pm

    Don’t worry, if the extreme Islamist capitulators have their way, the conservative Christians you fear will be a pleasant daydream.

  7. Comment by cleareyedtruthmeister on August 6, 2013 at 9:21 pm

    Yes, committed Christians do have discriminatory attitudes…toward sin. Yeah, that’s judgmental…almost as judgmental as modern liberals are toward Christians.

    If you want to see a theocracy just go on over to Iran and see what fundamentalist Muslims–the ones the American Left give a pass–do to homosexuals (hint: it’s a little more extreme than simply supporting a definition of marriage that has existed since its inception).

    BTW, I’ve never met anyone who had a race-change operation. But here is an interesting, uh, person who cannot decide what gender s/he wants to be. (Maybe liberals will write this off as being in his DNA in the form of a cis-trans chemical configuration that changes periodically). http://www.nypost.com/p/news/national/guy_again_eKq3Jw6LjgsjpBdmZklrtM

  8. Comment by cleareyedtruthmeister on August 6, 2013 at 2:07 pm

    In a culture increasingly hostile to Christianity the bishops’ observation that “Christian doctrine is based on fundamental truths about the human person readily ascertainable by anyone” is quite important (and congruent with Scripture).

    Secular society, in slouching toward the way of least resistance, bends over backwards to confine arguments for traditional morality to the religious realm, thereby enabling the mythical “separation of church and state” argument.

    But secular activists for limitless sexual expression, even if they can lock out faith-based arguments, fear what the bishops point out: if people actually thought deeply about unintended consequences they may end up agreeing with the Christian position, apart from any theological influence. This must not be permitted; therefore, action is required, employing every means possible, dishonest or not, to subvert historic sexual mores as quickly as possible, before negative consequences become apparent.

  9. Comment by Rick Plasterer on August 7, 2013 at 5:12 pm

    The advocates of homosexual liberation are too impassioned to consider any criticism of what they say or want, as the comments to my article show. However, I would want to reiterate the heart of what I said:

    1) Religious freedom means nothing if it can be set aside when other people are offended. This is in essence what the homosexual liberation movement and the ACLU are demanding. Biblical doctrine with respect to homosexuality is grossly offensive to them, and so it must be set aside with no legal protection. Not only religious freedom, but freedom in general, are only needed to act or not to act when someone else is offended. You don’t need freedom to do what offends no one; freedom to do what is noncontroversial is not necessary or important.

    2) Christian education, charity, publishing, etc., are not Christian if they compromise with sin. Christians, as a matter of the free exercise of religion, ought to be able to provide religious social service, because this is for us a religious activity. We are being denied the free exercise of religion if we cannot serve God as we believe he requires.

    3) The real Jesus is the one who speaks in the Bible, and he considers a mere lustful look to be worthy of hell. Religious and social liberals make the mistake of thinking that his concern with suffering means he sides with their program of sexual liberation.

    4) Jesus will really weep if his people are denied the right to serve him. So many serve him selflessly in educational and social service, they should not be denied the right to do so. He will weep too at the behavior those Christian schools, charities, etc. that bend to the state and do compromise with sin. Catholic charities has set an excellent example of closing its adoption services when required to compromise.

    Its not clear to me that we will lose this battle (at least the one to protect religious organizations’ right function by Christian principles). However, if the cultural left has its way, religious freedom in the West may soon be curtailed to the point it was under East European communism, with churches and Christians leading an harassed existence, deprived of religious institutions, only able to have worship services in public. But whatever the case, we must be faithful to God, not compromise with sin, and take the penalty if necessary.

    Rick Plasterer/IRD

  10. Comment by cleareyedtruthmeister on August 8, 2013 at 9:19 am

    Very good points, Rick. I would simply add that I believe Jesus’ concern with suffering is the very reason he endorsed historic Judeo-Christian teachings about marriage and sexual morality. Matthew 19 covers this quite well and is a sticking point for so-called “red-letter Christians” who elevate love and nonjudgmentalism (except for traditional Christians) above all else.

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