– 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.