The same day the US Senate voted to go forward with debate and a full vote on the Employment Non-Discrimination Act, or ENDA, a letter from three leading members of the United States Conference of Catholic Bishops objecting to the legislation was made public.
The letter, sent to all members of the Senate and dated October 31, was signed by Bishop Stephen Blaire of Stockton, California, Archbishop Salvatore Cordileone of San Francisco, and Archbishop William Lori of Baltimore.
ENDA, which will likely pass in the Democrat-held Senate but faces a less certain outcome in the Republican-controlled House of Representatives, would make it illegal for employers with 15 or more employees to discriminate on the basis of sexual orientation or gender identity.
While the USCCB “oppose[s] unjust discrimination on any grounds, including those related to homosexual inclination or sexual identity,” the bishops cannot support ENDA, the letter states. It goes on to detail the reasons for the bishops’ opposition; in their estimation, ENDA:
– Lacks a BFOQ exemption. ENDA does not include an exemption for a “bona fide occupational qualification” (BFOQ), for those cases where it is neither unjust nor inappropriate to consider an applicant’s sexual inclinations. This omission also elevates “sexual orientation” discrimination within Title VII to the same and, until now unique, level as race discrimination (which allows no BFOQ), and above religion, sex, and national origin discrimination (which do).
– Lacks a status/conduct distinction. ENDA’s vague definition of “sexual orientation” would encompass sexual conduct outside of marriage, thus legally affirming and specially protecting that conduct.
– Supports marriage redefinition. Based on experience in state courts, it is likely that ENDA would be invoked by federal courts to support the claim that, as a matter of federal constitutional right, marriage must be redefined to include two persons of the same sex.
– Rejects the biological basis of gender. ENDA’s definition of “gender identity” lends force of law to a tendency to view “gender” as nothing more than a social construct or psychosocial reality, which a person may choose at variance from his or her biological sex. This provision also fails to account for the privacy interests of others, particularly in workplace contexts where they may reasonably expect only members of the same sex to be present.
– Threatens religious liberty. ENDA could be used to punish as discrimination what many religions – including the Catholic religion – teach, particularly moral teaching about same-sex sexual conduct. Moreover, the bill’s religious freedom protection, which is derived from Title VII, covers only a subset of religious employers, and as a result of recent litigation, is uncertain in scope. Recent experience also shows that even exempted employers may face government retaliation for relying on such exemptions.
The full text of the bishops’ letter can be read here. The Senate is expected to vote on ENDA before the end of the week.