ENDA Poses Threat to Religious Freedom, U.S. Bishops Warn

The workplace anti-discrimination bill passed this month by the Senate, they say, also might further undermine the institution of marriage.

Archbishop Salvatore Cordileone of San Francisco
Archbishop Salvatore Cordileone of San Francisco (photo: File Photo/CNA)

WASHINGTON — The nation’s Catholic bishops oppose unjust discrimination of any kind, but they warn that a bill pending before Congress that purports to protect homosexuals from discrimination in the workplace could threaten religious liberty and further undermine the institution of marriage.

A letter sent to the U.S. Senate — signed by three committee chairmen of the U.S. Conference of Catholic Bishops (USCCB) — says the Employee Non-Discrimination Act of 2013 (ENDA) makes no distinction between sexual conduct and sexual inclination, contains an inadequately narrow religious exemption and does not allow employers, in appropriate circumstances, to consider a job applicant’s sexual inclination.

The legislation — passed by the Senate in early November but yet to be addressed by the House of Representatives — would also codify “gender identity” as the gender that someone identifies with, regardless of biological sex, and it would likely require employers to provide health insurance and other benefits to employees’ same-sex “spouses,” the bishops said. 

“Although ENDA may forbid some unjust discrimination, it would also forbid as discrimination what is legitimate, moral disapproval of same-sex conduct,” wrote Bishop Stephen Blaire of Stockton, Calif., chairman of the U.S. bishops’ Committee on Domestic Justice and Development, Archbishop Salvatore Cordileone of San Francisco, chairman of the Subcommittee for the Promotion and Defense of Marriage, and Archbishop William Lori of Baltimore, chairman of the Ad Hoc Committee for Religious Liberty.

As of mid-November, the House of Representatives’ Republican leadership had rebuffed calls from the White House and homosexual-advocacy groups to bring ENDA to the floor for a vote. Speaker John Boehner, R-Ohio, said the bill would lead to frivolous litigation, hurt small businesses and cost more U.S. jobs. Boehner also said ENDA would empower activist judges to impose same-sex “marriage” on the states.

“I am opposed to discrimination of any kind in the workplace and any place else,” Boehner said Nov. 14. “But I think this legislation that I've dealt with as chairman of the Educational Workforce Committee long before I was back into leadership is unnecessary and would provide a basis for frivolous lawsuits.”


Redefinition-of-Marriage Concerns

Archbishop Cordileone said during a Nov. 11 presentation at the USCCB fall general assembly in Baltimore that “ENDA-like laws have contributed to the erosion and redefinition of marriage at the state level.”

William Donohue, president of the Catholic League for Religious and Civil Rights, told the Register that he agreed with the bishops’ assessment.

“There is no question about it. You can’t allow wiggle room for activist judges to put their own spin on this,” said Donohue, who noted that ENDA’s supporters fought back amendments in the Senate that would have strengthened the religious-liberty exemption.

Donohue compared the opposition to what federal pro-life lawmakers experienced in 2010, when they had their efforts thwarted to insert an amendment to prohibit abortion coverage under the Affordable Care Act.

“We’ve been down this road before,” he said. “The fact that these advocacy groups oppose the amendment tips their hand and raises questions about their motives.”

Ten Republican senators voted for ENDA, including Pat Toomey of Pennsylvania, who introduced an amendment that would have expanded the religious-exemption language. The Senate rejected the amendment in a 55-43 vote, but Toomey still voted for ENDA because he said he wanted to “help move the legislative process forward.”

“I hope that — should the House consider this bill — it will move to improve and strengthen this measure so we can both advance equality in the workplace and protect religious liberty,” Toomey said.


Inadequate Religious-Liberty Protections?

An analysis by the Heritage Foundation, a Washington think-tank, says ENDA’s religious-liberty protections are “inadequate and vaguely defined.” The situation sounds similar to the bishops’ fight over the U.S. Department of Health and Human Services’ contraceptive mandate in employee health-insurance plans, as it does not appear that religiously affiliated organizations such as universities or hospitals would be exempt from ENDA, if enacted.

The Heritage Foundation analysis says the exemption would definitely not apply to private employers with religious convictions.

“Consider, for instance, a Christian bookstore not formally incorporated as a religious organization. Such a store could be accused of creating a hostile work environment by selling and promoting books stating that marriage unites one man with one woman,” wrote Ryan Anderson, a William E. Simon Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at the Heritage Foundation.

As currently written, ENDA would make it illegal for any organization with 15 or more employees to make employment decisions — including compensation and any other terms of employment — based on an individual’s “actual or perceived sexual orientation or gender identity.”

ENDA defines “gender identity” as the “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.”

That language, the bishops and other critics say, would mandate employers to treat a man as a woman, and vice-versa, if one “identifies” with the opposite gender. The bill’s vague language also does not help the fact that the federal courts have reached different conclusions as to which religious employers qualify for the exemption.

The bishops say that ENDA-like laws have also been used by state courts in California, Connecticut and Iowa to legalize same-sex “marriage,” after deciding that laws defining marriage as the union of one man and one woman were discriminatory and irrational.

“ENDA could be used to punish as discrimination what many religions — including the Catholic religion — teach, particularly moral teaching about same-sex conduct,” the bishops wrote, adding that recent experience shows that exempted employers may still face government retaliation for relying on their exemptions.


Human Rights Campaign

Dan Rafter, associate director of communications for the Human Rights Campaign, said ENDA includes “broad religious exemptions” and claimed it would not expose small businesses to new lawsuits.

“Let’s be clear: ENDA simply protects LGBT employees from workplace discrimination — hiring, firing and promotion practices — based on nothing more than their sexual orientation and gender identity,” Rafter said. 

The Human Rights Campaign and other like-minded advocacy groups say that ENDA is needed because homosexual persons lack workplace-discrimination protection in 29 states and that 33 states do not have any protections that account for gender identity. 

The Human Rights Campaign also challenges Republicans’ economic arguments by noting that several Fortune 500 companies already have ENDA-like policies and that 500 small business owners from across the country signed letters urging their senators to support ENDA. Groups that look out for small-business interests, such as the U.S. Chamber of Commerce, have not expressed opposition to ENDA.

However, the Heritage Foundation analysis said ENDA would chip away at the “at-will” employment doctrine and that the law is “wide open to abuse,” because employees’ assertions about sexual orientation and gender identity can change. ENDA could also stifle free speech in the workplace by banning any conversation deemed hostile to homosexuals and further erode the marriage culture.

President Barack Obama, writing in The Huffington Post Oct. 3, called on the House to pass ENDA because, “in many states, a person can be fired simply for being lesbian, gay, bisexual or transgender.”

“As a result, millions of LGBT Americans go to work every day fearing that, without any warning, they could lose their jobs — not because of anything they’ve done, but simply because of who they are,” the president wrote.


Church Teachings

The Catholic Church rejects the claim that “gender” is a characteristic based on an individual’s feelings about his or her sexual identity, as opposed to being an immutable physical reality.

“According to this philosophy, sex is no longer a given element of nature that man has to accept and personally make sense of: It is a social role that we choose for ourselves, while in the past it was chosen for us by society,” Pope Benedict XVI said in his December 2012 address to the Roman Curia. “The profound falsehood of this theory and of the anthropological revolution contained within it is obvious. … Man and woman as created realities, as the nature of the human being, no longer exist.”

But Church teaching also prohibits unjust discrimination against homosexuals. The Catechism of the Catholic Church states that people with “deep-seated homosexual tendencies” must be accepted with respect, compassion and sensitivity (2358). 

While opposing ENDA, the bishops said they are ready to work “with leaders and all people of goodwill to end all forms of unjust discrimination, including against those who experience same-sex attraction.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.