This article was featured in Capital Commentary, a weekly current affairs publication by the Center for Public Justice. To read more, visit http://www.capitalcommentary.org.
The Senate recently passed and sent to the House of Representatives the Employment Nondiscrimination Act (ENDA) legislation. Its basic goal is to protect LGBT persons against discrimination in employment by adding sexual orientation and gender identity to the bases on which persons may not be discriminated against. This is, of course, a controversial issue and an example of what many refer to as an ongoing “culture war” in American society.
Many faith-based colleges and universities, social service agencies, and overseas relief and development organizations rooted in religious traditions believe that those involved in sexual relations outside of heterosexual marriage are violating God’s will for human beings and thus those faith-based entities should not hire them. These faith-based organizations would no more hire someone engaged in sexual relations with someone of the same sex as they would an unmarried person engaged in sexual relations with someone of the opposite sex. They are understandably nervous over the prospect of ENDA legislation because they fear the loss of their ability to run their faith-based organizations in keeping with their deeply held religious beliefs.
Meanwhile, many LGBT folks, also understandably, believe it is unjust for an employer to refuse them employment because of who they are and the lives they live. They maintain that they are a group that historically has been subjected to hatred, prejudice, and a denial of opportunities, as has been the case with minorities who are now protected by nondiscrimination laws.
The conflict appears impossible to resolve. We will have to fight it out until one side or the other wins.
"This does not have to be a zero-sum game with one side’s loss being the other side’s gain."
But the Senate-passed ENDA legislation points to a more hopeful, positive way to navigate this conflict. This does not have to be a zero-sum game with one side’s loss being the other side’s gain. The ENDA bill passed by the Senate not only added sexual orientation and gender identity as bases on which employers may not discriminate in their hiring practices, but it also recognized that many religiously based organizations have sincere, deeply held objections to hiring persons in same-sex relationships.
The Senate-passed bill contains three key protections for faith-based organizations: (1) it exempted from the law’s requirements organizations that were entitled to exemption from Title VII of the 1964 Civil Rights Act (churches as well as religiously based educational, health, and social service agencies), (2) it provided that no organization could be denied a government grant or contract, license, or accreditation because it exercised its right to a religious exemption, and (3) its purpose statement explicitly declares the act’s intent to reach its goal of employment fairness “consistent with the fundamental right of religious freedom.” The latter two provisions were added on the Senate floor by amendments proposed by Republican Senator Rob Portman of Ohio.
I see this as an example of legislation in keeping with the goals of principled pluralism. It is hard to think of persuasive reasons to oppose nondiscrimination legislation in the case of LGBT persons. They have often been treated unjustly and denied opportunities in our society. Why should LGBT persons engaged in what I and many others consider unchristian behavior be treated worse than persons engaged in other types of unchristian behavior? Our laws ought not to impose Christian standards—or those of any other religious tradition—onto the rest of society. At the same time, our laws ought not to violate the religious freedom of Christians and their organizations, or those of other religious traditions, by imposing on them legal requirements that run counter to their sincere, religiously based beliefs.
While not perfect, the ENDA bill passed by the Senate largely meets these standards. LGBT persons are protected from discrimination in settings where prejudice and insincere religious beliefs have been a barrier; the rights of faith-based organizations of a wide variety of types, and not just religious congregations, are protected from being forced or pressured into practices that run counter to their beliefs.
In an increasingly pluralistic society that differs on issues involving basic beliefs and values on which there used to be agreement, both sides in the supposed “culture war” need to learn to live together with our deepest differences. We could do worse than follow the pattern established by the Senate-passed ENDA bill.
- Stephen Monsma is a Senior Research Fellow at the Henry Institute at Calvin College and Professor of Political Science Emeritus at Pepperdine University.