Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Stop Trying to Fence in Our Faith
There's not been much hue and cry about it yet, but ENDA is back, and it's worse. ENDA, the Employment Non-Discrimination Act (H.R. 2015), prohibits job discrimination on the basis of sexual orientation and also, this time, gender identity. ENDAs have been proposed unsuccessfully in Congress often since 1994, and a number of states have similar laws. Supporters say ENDA is essential because no one should be fired, not hired, or be treated unequally in the workplace for irrelevant reasons. Opponents point out that ENDA protects behavior that down through the ages has been seen as wrong and harmful by many religions and cultures, and that such behavior is not irrelevant to whether someone would be a good employee who fits a workplace.
The focus here, though, is not on that important dispute but rather on the clash between ENDA and faith-based organizations. ENDA of 2007 is but the latest proposal that shrinks religious freedom for the sake of enlarging certain civil rights, and in the process shrinks religion's very definition and scope of action, shoving it to the margins of our common life.
By including a religious exemption, ENDA acknowledges that its requirements may clash with religious standards. But unlike the state laws and previous federal bills, such as ENDA of 2003, the current bill does not forthrightly exempt religious organizations, thus respecting their freedom to make job decisions according to religious standards of behavior. Instead, it offers an elaborate three-part exemption that, in the guise of respecting religion, actually narrows its scope.
ENDA 2007 only exempts religious organizations like churches and seminaries—organizations with a "primary purpose" of worship, teaching religion, or spreading the faith. All other religious organizations—faith-based day care centers, religious colleges, parochial schools, religious hospitals, faith-based lawyers associations and think tanks, and many more—are excluded from the organizational exemption. ENDA's authors have decided they know best which positions in these organizations are really religious. In these groups, only jobs focused on tasks such as worship, Bible teaching, and evangelism are exempt. The third part of the exemption isn't clear, but it seems to allow faith-based groups to extend the job exemption just a bit further if they assert that some other jobs are like ministerial positions.
So how, then, are ENDA's proponents of expanded civil rights proposing to honor the religious freedom expressly protected by the U.S. Constitution? Only in the narrowest sense—only for churches and church-like institutions, for ministers and minister-life staff. But that leaves unprotected, outside the boundary of religion, most religious organizations. And it leaves outside the scope of real religion most service that is performed in the world due to religious inspiration and in accordance with religious conceptions. Most faiths regard service to our neighbors as a fundamental religious duty. The Apostle James goes so far as to say pure religion in God's eyes is to care for orphans and widows. ENDA 2007 has a conflicting view, a shrunken concept.
Without a doubt, protecting religious freedom has gotten more difficult because our society has different and divergent standards, worldviews, and identities. How to protect the rights of employees and applicants while also respecting the institutional freedom of religious organizations is more complex.
But that is no reason to fence in religious freedom and undermine faith-based action and organizations. The Constitution specifically prohibits government from defining what religion is. The authors of ENDA and its many sponsors from both parties need to ditch this bill. Do the right thing: protect diverse service and educational organizations with diverse standards, even though not everyone will be able to fit into every one of them.
—Stanley Carlson-Thies, Director of Social Policy Studies
Center for Public Justice
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”