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
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:
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
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
The full text of the bishops’ letter can be read
The Senate is expected to vote on ENDA before the end of the week.