ENDA, the Churches, and Religious Freedom

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The passage of the Employment Nondiscrimination Act (ENDA) by the Senate on Nov. 5 is one of the most ominous, if not at this point unexpected, events in the struggle between religious liberty and homosexual liberation. The devastating effect of making homosexuality into a “protected class” with respect to employment on religious liberty was reviewed by the present writer in an earlier article, as well as the resulting effective end of the world of church schools, charities, hospitals or other health related institutions, publishing or broadcasting organizations, or parachurch ministries as authentically Christian organizations.

While it remains for the House to pass the bill, which at this point appears unlikely, it may well be passed in a future Congress. As noted in a previous article, the Witherspoon Institute has well summarized the good reasons for rejecting the ENDA as far as non-religious employers are concerned, specifically that ENDA creates as a protected category a vague class based on behavior and subjective perceptions of “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This aggrieved, subjectively determined category of persons would then be empowered to litigate. Points of litigation might not necessarily be the kind of “employment related” topics the bill’s proponents would care to talk about at this point (such as hiring, firing, and wages) but allegations of a “hostile workplace environment,” which could involve any criticism of homosexuality by a co-worker, at work or even off hours, Bible verses posted to a work cubicle, religious decorations which might remind an aggrieved employee of religious condemnations of their behavior, or notices posted to workplace bulletin boards of social conservative events and organizations. Legal action for such reasons does in fact occur in states where ENDAs pertaining to sexual orientation have been enacted.

But the greatest concern with ENDA is its impact on religious organizations. These include not only houses of worship, such as churches or synagogues, but religiously affiliated charitable, educational, publishing, or broadcasting organizations. An amendment securing protection for these organizations was the decisive reason for ENDA’s passage in the Senate (64-32), with enough Republican votes supporting cloture to end the filibuster, yet even if enacted into law with this amendment, the newly enacted ENDA would then be the target of litigation opposing the religious exemption as discriminatory by groups such as the ACLU. The Supreme Court might then indeed strike the amendment down as a violation of the “liberty” or “equal protection” guaranteed by the constitution, keeping in mind that the court has already declared opposition to homosexuality to be irrational hate and nothing more. With the kind employment and workplace problems noted above, it is easy to see that applying the ENDA to religious hospitals, colleges and universities, charities, or publishing houses would destroy their religious character. As with the infamous HHS mandate to religious employers, the clear objective of eliminating the religious exemption to ENDA is to destroy the Christian sub-culture that has developed as western society has experienced secularization.

Given this threat, one might expect churches to be zealous in their efforts to stop the passage of ENDA in the interest of religious liberty, even where sentiment favors the acceptance of homosexuality. But the reaction of churches to the ENDA, and even to the religious exemption in ENDA, generally follows the liberal/conservative divide between religious groups, with religious groups committed to a liberationist interpretation of the Bible supporting ENDA and opposing its religious exemption.

Very good, incisive statements of the threat to religious liberty, and very rational arguments for in support of traditional Christian morality have been made by the United States Conference of Catholic Bishops and by the Southern Baptist Ethics and Religious Liberty Commission. The latter reiterated its opposition even with the broadened religious exemption, in view of its threat to the liberty of conscience of religious business owners and their employees.

On the other side, churches which have in varying degrees accepted the sexual revolution and have had a social gospel emphasis in recent decades support the ENDA, either denominationally, or through agencies concerned with social witness. The most long-standing support for law requiring acceptance of homosexuality in employment (and also housing and public accomodations) is from the United Church of Christ (UCC), which adopted a measure in 1975 calling for the government to prohibit refusal of service in these areas with no exemption for religious objection to homosexual behavior mentioned. Typical of all subsequent efforts at homosexual liberation, it cites the suffering of homosexuals as the key moral issue, without regard to the rightness or wrongness of homosexual behavior, and identifies the Judeo-Christian religious tradition as the chief moral culprit. In later years, the UCC endorsed acceptance of homosexuality throughout the denomination in 1985, and the institution of homosexual marriage by civil governments in 2005. With respect to the ENDA specifically, the UCC opposed the separation of the highly subjective “gender identity” category from an ENDA bill which had passed the Senate in 2007 (since restored). Currently, the UCC’s Rev. Michael Scheunenmeyer of its Justice and Witness Ministries calls the existing ENDA (including its “transgender” and “gender identity” categories) “a measured, common sense solution that will ensure that workers are judged on their merits, not their personal characteristics,” although behavior is now defined as part of sexual identity and thus one’s actions on the job also may not be judged, if one can make the case that they are gender related. With the meaning of “gender” increasingly fluid, this might not be has hard to do as many people would think.

The Episcopal Church has also been another perennial supporter of the ENDA. In 2002 it released a letter to U.S. Senators supporting the then existing ENDA together with ten other religious bodies, including six other denominations or denominational bodies. Its 2009 General Convention, which authorized same-sex blessings and formally sanctioned the opening of all church offices without regard to sexual orientation, also voted to support an ENDA that added “gender identity” to “sexual orientation” as an antidiscrimination category. The Episcopal Public Policy Network did issue a 2009 statement supporting the ENDA, which seemed to accept the exemption written into the bill at that time protecting religious organizations.

The United Methodist Church, which continues to maintain that homosexuality is incompatible with Christian teaching, has not formally supported the ENDA, although its General Board of Church and Society long has (since 1999). Most disturbingly, the pro-homosexual Reconciling Ministries Network within United Methodism opposes the current ENDA’s exemption for religious organizations. Like the homosexual liberation movement in general, RMN argues that there should be no religious freedom if “protected groups” are offended. For RMN and other such groups, religious liberty is quite clearly not a “fundamental human right” of the same magnitude as sexual liberty. This despite the fact that religious liberty is first mentioned in the Constitution, and surely would reasonably inform the guarantees of “liberty” and “equal protection” in the Fifth and Fourteenth Amendments.

The Presbyterian Church (USA), which recently ended its chastity requirement for clergy, did not formally support the ENDA until recently, although again, as with the UMC GBCS, the PCUSA’s Washington Office long has (as early as 2002). Once again one can see the bureaucratic structure of a denomination endorsing a leftist proposal the whole church has persistently declined to embrace.

In a similar recent action, the Evangelical Lutheran Church in America recently did pass a “memorial” (or resolution) at its 2013 Churchwide Assembly in support of a “fully inclusive” ENDA (i.e., including transgender and gender identity) without debate.

The logic of the antidiscrimination regime assumes that organizations serving the public exist primarily for their stated secular purposes: schools to teach, hospitals to care for the sick, secular charities to attend to the indigent, etc. Reasonably they then function on secular principles. The principle purpose of religious service organizations on the other hand, whether educational, charitable, medical, broadcasting and publishing, or whatever, is to serve God, not principally to provide the social services they offer. Additionally, they are voluntary associations, which no one has to join. Reasonably, they should make the faith and morality they require known in the hiring process. Logically, they should be free of all antidiscrimination law, although the earlier antidiscrimination categories pose far less of a problem for the principle religions in this country, including especially those religious groups commonly involved in social service work. But issues pertaining to sexual morality are fundamental to the religions common in this country, and the state cannot impose its standards on these associations without destroying their religious character. As with Catholic adoption services, the likely outcome (and the only one showing integrity) is that the religious organization must either secularize (end its religious affiliation) or cease providing its services (perhaps ceasing to exist). And if religious social service cannot be provided, then for an important part of religious America a major part of the exercise of religion is prohibited.

While respect for religious liberty should be sufficient to exempt religious organizations from the antidiscrimination regime, as a practical matter it will not be if the public comes to accept secularist claims that religious precepts are irrational and cruel. This, of course, is exactly what is being claimed about the Judeo-Christian condemnation of homosexuality. But the common pattern of the sexual revolution has been to discover that rejected dogma is shown to be for the best after all, producing the best outcomes for children and society, as well as being better for individuals who have abandoned the old norms than the life they have chosen. Awareness of this reality is practically important in sustaining classical freedoms, which is why advocates of the sexual revolution have tried to restrict the free interchange of ideas.

Opponents of the religious exemption, such as Julian Bond in the RMN article noted above, claim that the purpose of the antidiscrimination regime is to be “life changing.” But this is a fundamentally wrong understanding the purpose of government. The government exists to provide a necessary mediocum of public order, not to regulate lives by the superior wisdom of persons in power. The cultural left that dominates the academic and entertainment world and has managed to enact much of its social vision into law may regard the Christian religion as oppressive, but it has no right to impose its views on believers who strive to make obedience to God’s precepts as they understand them the most important activity of their lives.

Yet this is precisely what liberal/left America is endeavoring to do, aided enthusiastically by its churches, who take their inclusivist, egalitarian vision (really theological universalism applied at a social level) to be applicable not only themselves, but to orthodox believers and all of society as well.