Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The White House is signaling that Bush will veto the Employment Non-Discrimination Act (ENDA), a bill that would add sexual orientation to the already existing Federal anti-discrimination laws. The religious right has been in a full court press of lies and distortions to stop this bill and now the White House is joining the chorus of bullshit. Their line is that it violates RFRA:
"H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA). The Act prohibits the federal government from substantially burdening the free exercise of religion except for compelling reasons, and then only in the least restrictive manner possible."
But this is nonsense. RFRA allows for exemptions to generally applicable laws - including this one - and explicitly leaves it up to the courts to apply the criteria in the law and determine whether an exemption must be granted. That would also be the case here. RFRA was not designed to stop Congress from passing generally applicable laws, only to allow for exemptions if the law places an undue burden on religious freedom without achieving a compelling state interest. And in fact, this law explicitly provides exemptions for churches and religious institutions already. Not good enough, says the White House policy statement on the bill:
"H.R. 3685 does not meet this standard. For instance, schools that are owned by or directed toward a particular religion are exempted by the bill; but those that emphasize religious principles broadly will find their religious liberties burdened by H.R. 3685," the White House said.
They're leaving out just one inconvenient fact: that's already the case. Remember, all this bill does is add sexual orientation to an already existing list of reasons for which one cannot discriminate in matters of employment. Religion is already on that list. As I pointed out in a previous post, if you compare the exemption language in this bill to the exemption language already applied in the law, if anything it provides a broader exemption than current law.
And of course, they have to repeat the religious right's lies about it as well:
As WND reported earlier, proposals such as the Employment Non-Discrimination Act would give special privileges to "gay" and "transgendered" individuals."If passed, the bill would grant special employment rights and protected minority status to individuals who define themselves based upon chosen sexual behaviors," said Matt Barber, a policy analyst with Concerned Women for America, the nation's largest public policy women's group.
There's that word again. It would provide special privileges and special employment rights. Never mind that Christians already have that exact same "protected minority status" for those who define themselves based upon chosen religious beliefs. We already have it, but if you get it, that would be "special." What would really be "special" is if the religious right would stop lying through their teeth about this bill.
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Don't you know how this works, Ed? If it affects ME, then it's broadly based and good; if it affects someone I am opposed to, then it's giving someone SPECIAL rights. Sort of like how affirmative action means that YOU won't be able to get a job or go to the university you want to. This has emotional appeal to people - that's why Jesse Helms used it in his re-election campaign and why the University of Michigan was sued by anti-affirmative action activists by using white students who were not admitted to the university. These people really see themselves as the guardians of our morals and if they couldn't discriminate against the GLBT, then this country is going down the drain. Of course, they used these same arguments back in the 60s for not integrating and they'll use them again in the future, long after this issue has been resolved in favor of the GLBT community and they have made their mea culpas, against some other targeted group. It's what they do.
Posted by: BC | October 26, 2007 10:19 AM
As you're well aware, but others should be as well, many gays, such as those at http://outrightlibertarians.blogspot.com oppose the passing of ENDA.
Posted by: KRM | October 26, 2007 10:46 AM
This is re-stating the obvious, but this yet another example of the admistration's dismissal of science and reason in favor of religious ideology.
Bush apparently agrees with the claim that homosexuality is a chosen behavior - a religious claim. The science of human sexuality is obviously far from settled.
And so what if it is a chosen behavior? Is not a person's religion chosen, at least in some cases?
Who's next on the list to be denied protection from employment discrimination - Wiccans perhaps?
Posted by: ZacharySmith | October 26, 2007 10:49 AM
Actually, BC, the way it works as that whatever they think is right is right, and any reasons they come up with are just to give the appearance of justification. That's why they will offer contradictory explaantions for different things. They can't even see that they are doing that, becuase once they feel good about azn explanation, there is nothing more to think about.
Posted by: Valhar2000 | October 26, 2007 11:26 AM
I eagerly await the push to repeal the requirement that employers make reasonable accommodations for their employees' religious beliefs. After all, if ENDA violates RFRA, so does that.
Posted by: AnneS | October 26, 2007 11:41 AM
So, what happens if someone claims their homosexuality is a religious belief? Would they then be covered under the currently law against discrimination? Anyone want to start a Church?
Posted by: Giles | October 26, 2007 12:29 PM
I think Troy Perry may have beaten you to that - it's called the Metropolitan Community Church.
Posted by: CPT_Doom | October 26, 2007 3:11 PM
And I couldn't help but notice the phrase "chosen sexual behavior" which betokens a few points in and of itself:
1. The assumption that homosexuality is chosen, when the scientific consensus is now saying otherwise. Nevertheless, it should be irrelevent whether it's chosen or not, since religion--another protected class--is certain a chosen quality.
2. The focus on "behavior" when the law, I believe, specifies "orientation." This is just another confirmation that rightists find it impossible to think of homosexuality in any terms other than two (or more) men doing the nasty. Why can't the religious right get their heads out of the damned gutter?
Posted by: gary l. day | October 26, 2007 3:49 PM
If Bush vetoes the bill, gay CEOs can continue their abominable practice of firing otherwise qualified men and women merely for choosing to engage in heterosexual behavior.
Why does Bush hate heterosexuals?
Posted by: MyPetSlug | October 26, 2007 4:24 PM
The exemption granted by ENDA (H.R. 3685) is much narrower than the exemption granted by RFRA. The RFRA exemption is available to anyone, but ENDA's exemption is restricted to "religious organizations":
Under the above exemption, the Boy Scouts would not be entitled to discriminate against gays, even though the US Supreme Court ruled that the Boy Scouts is a private organization that has a constitutional right to discriminate against gays (Boy Scouts of America v. Dale).
That is not "already the case." As I noted above, this bill would deny Boy Scouts the right to discriminate against gays, even though the Supreme Court said that the Scouts have a constitutional right to discriminate against gays. The bill might even be ruled to be unconstitutional.
The White House was discussing ENDA's employer exemptions, not "reasons for which one cannot discriminate in matters of employment."
Wrong. As I pointed out above, the RFRA exemption is available to anyone whereas ENDA's exemption is restricted to religious organizations. Furthermore, the religious exemption in the current version of ENDA is narrower than the religious exemption in the version of ENDA cited in your previous post.
Anyway, I don't see discrimination against gays as being a big problem except in the Boy Scouts. And though the Supreme Court has ruled that the Boy Scouts may discriminate against gays, the courts have also ruled that governments may discriminate against the Boy Scouts on the basis of the Scouts' discrimination against gays (and atheists) -- the California Supreme Court upheld Berkeley's decision to deny the Sea Scouts free berth space at the Berkeley marina.
Personally, I don't think ENDA is going anywhere. Bush opposes it, it has only 9 House co-sponsors (in addition to the sponsor), and there is no companion bill in the Senate.
Posted by: Anonymous | October 26, 2007 7:44 PM
Anonymous,
Peculiar that you picked the Scouts as you example. As you noted they also discriminate against atheists who are already a protected class by law. Yet, the scouts are allowed to discriminate against them. Are you honestly attempting to argue that ENDA is more sweeping than existing protected classes?
governments may discriminate against the Boy Scouts
Sorry, government wasn't discriminating against them. It was simply upholding it's regulations for non-discrimination.
Posted by: daenku32 | October 26, 2007 10:24 PM
Anonymous wrote:
The point is that organizations can still ask for a RFRA exemption after this bill is passed. RFRA allows them to do so and when considering the question of whether to give an exemption, the courts apply the criteria in RFRA, not in this bill. The broadest exemption is still applied.
The Boy Scouts do not qualify as a religious organization under ENDA, but that has nothing to do with RFRA. RFRA does not require that the plaintiff be a religious organization. It can even be an individual (and usually is), or any non-governmental entity. The Boy Scouts could still qualify for a RFRA exemption as a private group, and given the result in Dale the courts would be forced to grant them such an exemption. The current Supreme Court is certainly not going to overturn Dale.
Remember, the current law that ENDA amends already forbids discrimination on the basis of religion, yet the Boy Scouts are allowed to discriminate on that basis now too. If your argument about the Boy Scouts was correct, they would already be forbidden to discriminate against atheists, but they are not.
Posted by: Ed Brayton | October 26, 2007 10:32 PM
"...the courts have also ruled that governments may discriminate against the Boy Scouts on the basis of the Scouts' discrimination against gays (and atheists) -- the California Supreme Court upheld Berkeley's decision to deny the Sea Scouts free berth space at the Berkeley marina."
So not giving people free shit is discrimination?
I've been a victim all my life and never realised it.
Posted by: Ian Gould | October 27, 2007 1:32 AM
Ed said,
I don't know why you assume that the courts would apply the RFRA criteria rather than the criteria that are in ENDA itself. If Congress intends that the RFRA criteria be used in ENDA, then why doesn't Congress just say so in ENDA? What is the point of putting criteria in ENDA that are not going to be used?
The Supreme Court said in Posadas v. National City Bank of New York, 296 US 497, 503 (1936),
The courts might very well decide that the exemption criteria in ENDA are an "implied repeal" of the exemption criteria of RFRA so far as employment discrimination against gays is concerned.
The law that ENDA amends does not grant a religious exemption for employers -- ENDA does grant such an exemption, and as I showed above, the Boy Scouts would not be eligible for this exemption, even though the Supreme Court has ruled that the Boy Scouts have a constitutional right to discriminate against gays (and, by implication, atheists too). Because ENDA gives a result that is different from a constitutional ruling of the Supreme Court, the Supreme Court might rule that ENDA is unconstitutional.
Also, the Supreme Court's decision in Boy Scouts of America v. Dale was not even based on the Scouts' religious beliefs but was based on the Scouts' "system of values" and "First Amendment right of expressive association."
daenku32 said,
I used the term "discriminate" here in a broad sense that includes justifiable as well as unjustifiable discrimination. The Sea Scouts complained that Berkeley discriminated against them by treating them differently than other nonprofit charitable organizations and that the reason for discrimination was invidious. I suspect that there were other nonprofits that were getting free boat berths or other freebies from the city. I think that the Sea Scouts probably thought that their position was strengthened by the Supreme Court ruling that they had a right to discriminate against gays.
Ian Gould said,
It can be. See my above discussion.
Posted by: Anonymous | October 27, 2007 3:54 AM
Its depressing how these folks' arguments never change; didn't the clansmen justify hatred of African-Americans by claiming them to be the sinful children of Cain? How exactly can the expression of a specific kind of hatred targeted on a single group be part of a person's "culture"?
People forget why their families came here in the first place. I doubt the original German anabaptists went to court to defend their right to have Jewish pogroms. The U.S. gov has no right, and does not attempt, to punish people for holding hateful attitudes, but when a subgroup consistently uses that hatred to justify their repeated impositions upon the rights of other people to live as they choose within the law, it has no choice but to respond by legally limiting where such discrimination can take place.
Posted by: Julian | October 28, 2007 7:47 AM