Congress is poised to pass H.R. 3685, the Employment Non-Discrimination Act (ENDA). This bill adds the words “sexual orientation” to the list of classes protected by the Federal government under civil rights law. ENDA was sponsored and introduced by Rep. Barney Frank (D-Mass) an openly homosexual member of Congress. If passed, ENDA will make it illegal to fire or refuse to hire an individual based on their real or perceived sexual orientation. Under ENDA an employer who refuses to hire a homosexual or transgender because of personal religious convictions will be in violation of Federal law and liable to be subjected to a costly lawsuit.
H.R. 3685 was passed out of committee last week and a vote on the House floor is expected to come this Tuesday. It is imperative that we act very quickly to stop this assault on Judeo-Christian values. Please call your member of Congress and urge them to “Vote No on H.R. 3685, the Employment Non-Discrimination Act of 2007. Sexual orientation should not be protected in federal law.” You can find out who your member of Congress is by going to www.House.gov. You can also reach your member of Congress by calling the Capitol Switchboard at 202.224.3121.
If your Congressman is a newly elected Democrat he or she especially needs to hear from you since they will probably be one of the key swing votes that will determine whether or not a Presidential veto can be sustained should the legislation pass.
Why is ENDA Wrong?
ENDA, H.R. 3685, is a flawed piece of legislation based on the following reasons:
1. ENDA seeks to add the words “sexual orientation” to the list of classes protected under Federal Civil Rights law. This is in violation of the traditional three part test required for a class to gain civil rights protections.
That test is:
A) The class must possess immutable characteristics, B) The class must have a history of economic discrimination, and C) The class must be politically disinfranchised.
2. ENDA allows GLBTs to sue in response discrimination against their lifestyle but does not protect the employers who have religious beliefs that lead them to not hire GLBTs.
3. ENDA restricts the 1st Amendment’s Free Exercise of Religion clause by providing zero exemptions for employers with religious beliefs contrary to the GLBT lifestyle.
4. ENDA applies to both real and perceived discrimination. This means that employers are held hostage to the whims of the GLBT community’s demands since any discrimination against them, whether based on their sexual orientation or on their individual failure to adhere to a general standard, can subject them to a protracted legal battle.
5. ENDA currently does not apply to religious organizations but there is no guarantee that once it is enacted it could not be amended to apply to churches, schools, and other religious organizations.
6. ENDA, if enacted, would mean that the federal government is sanctioning the lifestyle choices of GLBTs. This lifestyle is physically and emotionally dangerous to those involved in it. It also damages the fabric of traditional values that form the very key to our success as communities.
7. ENDA’s current religious exemption clause is so vague that courts will have wide latitude in determining which organizations fall under the protection of the clause. In legislative matters this important and fundamental it is not wise to leave key concepts open to a variety of court interpretations.
ACLJ Memorandum on ENDA Note: This memo deals primarily with H.R. 2015, a predecessor to the current H.R. 3685.