Bill Threatens Private Schools’ Religious Liberties

Published November 14, 2013

The U.S. Senate has passed and the House will consider a bill that may force private and religious schools to hire people whose sexual conduct violates the organizations’ beliefs.

The Employment Non-Discrimination Act of 2013 (ENDA) forbids employers to “fail or refuse to hire or to discharge any individual … because of such individual’s actual or perceived sexual orientation or gender identity.” Similar laws in New York and Maryland prohibited employers from firing cross-dressing employees who made customers uncomfortable.

“The Becket Fund is concerned about any law that does not provide robust religious liberty protections where they are warranted,” said Emily Hardman, a spokeswoman for the public interest law firm. “The limited exemptions for certain religious organizations that we have seen in the ENDA draft under consideration are manifestly inadequate.”

Narrow Exemption
The bill contains an exemption for some religious nonprofits. The need for this shows the bill restricts religious liberty, said Sharee Langenstein, a lawyer and Eagle Forum’s chairman for religious liberty.

“Constitutional laws need not contain specific protections for individuals or private entities to ensure the free exercise of religion or conscience,” she said. “If a law requires such language, that law has already crossed the threshold into unconstitutionality.”

The exemption also ignores profit-making organizations, such as schools, preschools, day cares, and day camps, “which seek to conduct their business in accordance with moral or religious principles, such as a Bible publisher or a Christian radio network,” noted Peter Sprigg, a senior fellow at the Family Research Council. “‘Sexual orientation’ and ‘gender identity’ are largely behavioral categories, and employers should be free to determine what behavior is or is not appropriate for an employee.”

Confusion about Labels
Because sexual orientation is considered to be determined by each individual subjectively, not on the basis of objective factors such as biology or criteria within the law, it’s impossible for people to know how the law will be applied, Langenstein said.

“So-called “nondiscrimination” laws granting protected-class status on the basis of sexual orientation have been epic failures at the state level,” she said. “Each case of so-called discrimination must be ultimately determined one by one in the courts. ENDA would protect no one other than trial attorneys seeking to line their pockets.”

Specific personnel decisions should not be controlled by government, Sprigg said.

“Employers have the right to decide for themselves what qualities or characteristics they seek in an employee,” he said. “Government should step in only in exceptional cases. Race is one of those obvious exceptions, but race is a protected category because it is inborn, involuntary, immutable, innocuous, and in the Constitution.”

“People speak of this as a ‘civil rights bill,” said Sprigg, “but the ‘right’ in question is the right to sue your employer for an employment grievance. It is likely that in a number of cases, employees who are fired for actual misconduct will … charge that the real reason was ‘discrimination,’ thus subjecting the employer to lengthy and expensive litigation.”

Image by Sean Wallis.