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Christmas: Promise and Purpose December 19, 2013

Posted by Daniel Downs in Christmas, family, marriage.
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By Daniel Downs

Christmas is a multifaceted story about real events wrapped in two narratives. The two narratives are found in the gospels of Matthew and Luke. Like a new train and its track, these two narratives are part of one colorfully packaged gift given to humanity by God. Together they show the meaning of Christmas.

Some scholars and teachers rightly say the reason for the season is God’s love, peace, and forgiveness of sin.

The first gospel begins with teen pregnancy. Yes, it’s true the Hebrew word translated virgin actually means young woman or teen girl. It’s equally true that in ancient Jewish culture teenage girls were expected to marry and then bear children. Out-of-wedlock pregnancies were as unlawful as immoral. The social stigmatism would have been as illiberal as Scarlet Letter puritanism. Just as a barren wife, a young unwed mother would have experienced the discriminating scorn of a religious society. Therefore, it is reasonable to interpret the transliterated Hebrew word almah as virgin (Mt. 1:23; Isa. 7:14).

Rabbinical literature originating in Babylonia portrays young Mary as mistress of a Roman soldier. Whether because of sinful consent, seduction or rape, Mary’s pregnancy was conceived by rabbis opposed to the gospel message as adulterated sin. The Palestinian view, as scholars call it, is considerably different. It lacked any negative diatribes against Mary or her son. Just as the Palestinian Talmud reflects its local context, the two gospel narratives were rooted in local events and daily life in Judea and Samaria.

We also will find the meaning of Christmas grounded in the same geographical, cultural, ideological, and historical situation of then current events.

While reading our two narrative gifts, two bright themes twinkle like lights reflecting off shinny wrappings. Those themes are promise and purpose. As if sitting prominently under a Christmas tree, the two themes are wrapped with bright colorful interpretations of unfolding events. Those events appear to be fulfillment of promises made by God through even more ancient prophets. As such, they reveal as well as affirm the purpose of God.

For example, the gospel of Matthew begins the story of Jesus’ birth with marriage. “Mary has been betrothed to Joseph…her husband (1:18, 19). In ancient Jewish culture, engagement was regarded as the beginning of a marriage. While Joseph was thinking about divorcing her, an angel told him to keep his wife because her pregnancy was God’s doing (1:19-20). Why would God do such a thing? The angel continued telling Joseph that Mary’s son would save his people. At that time, most Israelis were expecting a Messiah that would deliver them from the oppressive rule of the Roman Empire and puppet kings like Herod. That was not God’s purpose. Jesus was adopted and formed in the womb of Joseph’s virgin wife to save his people from their sins (1:20-21). This was seen by ancient writers like Matthew as fulfillment of Isaiah’s prophecy about the Messiah (1:20-21; Isa. 7:14). As evident in writings like Psalms of Solomon, 1 Enoch, and Dead Sea Scrolls, the Messiah of David would represent the holy presence of God and lead all Jews into sinless living. In fact some believed the law would pass away when the true Messiah began to reign. For the law not to be needed meant all had to live holy lives at all times. Being capable of doing so meant the Messiah had to be as holy and sinless as those he would make holy or sinless. That is what the name “Immanuel” or “God with us” meant to those same ancient people.

If we trace the biblical history of God’s redemption, God chooses marriage and family as part of the means to its end.

The purpose of marriage is narrated in Genesis (2:18-25). After their moral crime, Adam and Eve were given a promised future in which God’s purpose would continue. Adam and Eve would create a society of families who would make God’s creation productive and who would overcome temptation and immorality (Gen. 3). It was for married society that God offered the first animal sacrifice in order to cover the naked guilt and shame of the first traditionally married couple. The clothing also served to minimize temptation (Gen. 3:21-23). Nevertheless, sibling rivalry and sexual perversion motivated by jealousy and lust followed (Gen. 4:1-24). One result was the rise of the first walled urban city, according to archaeology. Beginning with Adam’s grandson, the descendants of Adam began seeking God’s redemption (Gen. 4:25-26). Why? Because human decadence also continued until it dominated society. This was followed with the family of Noah being saved from the flood as well as the continuation the covenant of redemption that began with Adam (Gen. 6-8 & 9-10). The fulfillment of God’s redemptive purpose was given greater specificity with the family of Abraham. Through this family, God promised to bless the entire world (Gen. 12-17). At the same time, the sterile couple, Abraham and Sarah, was promised a son, Isaac, through whom the promise would be fulfilled in history (Gen. 15, 18). Yet, the promise was The same could be said about the family of David and the promised Messiah (2 Sa. 7:12-16; Rom. 1:1-4). Not only through a specific descendant of David would Israel’s redemption be realized but all people across the globe would have access to it as well. With the virgin birth of Jesus, the promised redemption began to be fulfilled.

As we have seen, God chose a young married couple to bring His adopted son into the world. The fact that an angel visibly announced God’s adoptive purpose for Jesus’ life before his conception gave them a solemn mission of parenting. Their purpose was to raise God’s son to fulfill his life purpose—the salvation of Israel as well as rule of the kingdom (Lk. 1: 32-33). All of this was affirmed first by the priestly shepherds who were told by a host of angels that the salvation this new born King would bring was for all people (Lk. 2:10-14). Further affirmation came at Jesus’ dedication by the temple priest Simeon (Lk. 2:21-32). Simeon again affirmed that Jesus was salvation for both Jews and gentiles according to Isaiah 49:5-6. Finally, the ambassadors of Parthia, the Magi, came escorted by a military regiment to pay homage to the newly born Messiah (Mt. 2:1-6). Consequently, Mary and Joseph were parents with a holy mission to deliver God’s gift of salvation holy and sinless for both Israel and the world. They had godly relatives and friends as well as a culture defined by God’s word (however tainted by sin and the influence of Rome’s presence) to assist them.

This was God’s Christmas gift to all people for all times. Jesus’ parents wrapped him in a Hanukkah candle wick because God wanted all people to see that His son is true light of the world (Lk. 2:12-14). While his destiny was to suffer the shame and judgment for all sins of all people on the cross and in hell, God saw the fulfillment of his redemptive purpose advance toward final fulfillment (Isa. 53). Having fully satisfied divine justice, God raised His son from hell, from death’s tomb, and from the rejection of ignorant men. And, by lifting His son up to His side in heaven, the light of His peace, grace, and holy life forever shines for all to behold and embrace. God’s just forgiveness, His presence and empowerment, and His acceptance are continually held out by our gentle risen Shepherd and Lord Jesus. The gift only has to be received and lived. When all parents and their children do, society will finally realize the common good of God’s will. Then peace will then reign on earth.

2012 Republican National Convention Live August 28, 2012

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This is cool! Watch the 2012 RNC live.

Obamagnosis August 15, 2012

Posted by Daniel Downs in moral law, moral relativism, natural law, politics.
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by Prof. Paul Eidelberg

A Muslim extremist shoots up a U.S. military base and it’s called “workplace violence.” It’s called “workplace violence” by those suffering from an extreme case of “agnosis,” a mental or moral inability to recognize certain human acts as downright evil. Since this ignorance is quite prevalent in the pronouncements and policies of the Obama Administration, we may reasonably say his Administration is suffering from “Obamagnosis.” Let’s see where this agnosis leads us, beginning on the surface and proceeding step-by-step to the underlying and insidious cause of this mental and moral disorder.

If a Muslim employee of the House of Representatives or of the Senate—or better yet, of the White House—was to shoot up some Representatives or some Senators or members of the President’s staff—Aha! This would be nothing more than “workplace violence” or manifestations of Obamagnosis! Now let’s probe more deeply.

Obamagnosis is not merely a diagnosis of the flawed human being in the White House. Since many millions of Americans voted for this man in the 2008 presidential election, Obamagnosis describes a malady of national scope and significance. These Americans voted for this man even though he displayed not only unparalleled political ignorance and inexperience, but also utter contempt for what Americans represent as a nation but also the price Americans have paid in blood and treasure defending freedom and human dignity against Nazi and Soviet tyranny.

Even while campaigning for the Presidency, this man had the audacity as well as the mental vacuity or agnosis to disparage America’s most revered foundational documents, the Declaration of Independence and the Federal Constitution. Despite his agnosis, which is unparalleled in the history of democratic politics, many millions of Americans dignified this stranger with their votes. What a travesty of American Exceptionalism! But what is the root cause of this decadence, of this sickness unto death called “Obamagnosis”?

To begin with, we must ask, “Who are the educators of the many millions of Americans who have been rendered so morally and intellectually vacuous by Obamagnosis that a Muslim terrorist attack on a U.S. military base can be called “working place violence” without causing a national uproar? Can it be the legions of academics who, for more than 100 years, have dominated American colleges and universities? Or am I am painting with too broad a brush?

I know it’s not de rigueur to name names, but America’s existential situation compels me to do so. The academics I am alluding to comprise the multitude of “post-American” intellectuals who, influenced by the crypto-Marxism and historical relativism exemplified in the 1913 publications of Charles Beard and Carl Becker—the former on the Constitution, the latter on the Declaration—rendered those once venerable foundational documents of the American Republic intellectually obsolete. Indeed, decade after decade they have been relegated to the trash heap of history. As a consequence, the political and spiritual ideas articulated in these documents were degraded or were nothing to be very proud of let alone worth fighting and dying for. Today they no longer incite in countless Americans the moral sense and integrity to identify and candidly denounce America’s evil and existential enemy—the military ideology that precipitated that Muslim’s terrorist attack on a U.S. military base.

Now let us focus on the crypto-Marxism of Charles Beard’s Economic Interpretation of the Constitution of the United States. This book has had so many printings since 1913 that it has become a veritable icon for tens of thousands of American educators—and not only historians and political scientists—who reduce the ideas and statesmanship of America’s Founding Fathers to their economic interests. This crude and simplistic crypto-Marxism took academia by storm. Indeed, it is still cited uncritically by scholars. It seems never to have occurred to these patriotic intellectuals that they were impugning the integrity of America’s greatest statesmen—which does not mean that these extraordinary statesmen should be lionized (but what shall we then say of today’s politicians?).

In any event, given the two pervasive and related academic doctrines of crypto-Marxism and historical relativism, I must say in all candor that “higher education” has corrupted generations of American college and university students. And since moral relativism is evident at all levels of American education—most conspicuously in the social sciences and humanities—I contend that this doctrine, more than any other single factor (such as money, skin color, or the ineptitude of John McCain), that enabled Obama to win majority of the votes in the 2008 presidential election.

Now, since Americans influenced by moral relativism must be deemed either ignorant or dismissive of the universalism and trans-historical validity of the principles of America’s Declaration of Independence, is it not obvious that what is primarily responsible for this widespread ignorance and indifference is academia?

Viewed in this unconventional way, Barack Obama’s victory in the 2008 presidential election should be understood as an “electoral” victory of the cynical and degrading doctrine of moral relativism over its opponent, the magnificent universalism of the Declaration articulated in that document’s humble appreciation of “the Laws of Nature and of Nature’s God.” Nor is this all.

Know well that in the eighteenth century, both in Europe and America, educated people regarded the Laws of Nature as the “Moral Law.” What the Declaration calls the “Laws of Nature and of Nature’s God” may rightly be construed as the American abbreviation of the Seven Noahide Laws of universal morality. This is evident in the writings of some of the Declaration’s most learned signatories such as James Wilson and John Adams. These men, like the Continental Congress that promulgated the Declaration of Independence, were averse to Jefferson’s omission of the name of God and Divine Providence in his initial draft of that document.

Finally, contrary to academic opinion—even of scholars of the Straussian school of political science—the natural-cum-moral law doctrine of the Declaration of Independence is rooted not in the political philosophy of John Locke but in the Seven Noahide Laws of the Torah. This may be may confirmed in the writings of Locke’s acquaintance, the greatest Hebraist of the eighteenth century, John Selden, at least one of whose lengthy volumes on the Talmud was in Locke’s libarary.*

Summing up, Obamagnosis represents a denial of the natural-cum-moral law. It is precisely this denial that underlies the moral or mental disorder that impels those infected by Obamagnosis—a sickness unto death—to call a Muslim’s shooting up of an U.S. military base “workplace violence.”

Prof. Paul Eidelberg is President of The Israel-America Renaissance Institute. His most recent book is The Theo-Political Foundations of American Exceptionalism.

The Selling of the Presidency: Politics in the Age of Television July 25, 2012

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On Target with John Whitehead® is a video blog that provides viewers with Whitehead’s insightful, relevant and provocative take on popular culture and constitutional issues. Whitehead is considered by many to be a legal, political and cultural watchdog—sounding the call for integrity, accountability and an adherence to the democratic principles on which this country was founded. He is president of The Rutherford Institute.

No Controversy? Facts For Melinda Gates July 14, 2012

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The Muslim Brotherhood and the Prophecy of Anwar Sadat: Time to Call a Spade a Spade June 28, 2012

Posted by Daniel Downs in Middle East, politics.
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Prof. Paul Eidelberg, President
Israel-America Renaissance Institute

Contrary to the tepid analyses of Drs. Dore Gold and Daniel Pipes regarding Mohamad Morsi’s victory in Egypt’s presidential election, Israel has more than they suggest about the results of that election, and for at least three ominous reasons of which they are not unaware:

(1) Morsi is a leading member of the Muslim Brotherhood now poised to sweep over Egypt and render Egypt’s 1979 peace treaty with Israel a dead letter.

(2) Rabid Jew-hatred permeates the people of Egypt and its state-controlled media.

(3) The U.S. has supplied Egypt’s ambitious military establishment with billions of dollars of sophisticated military hardware.

Item (3) was part of a U.S. “payoff” to Anwar Sadat’s for his historic November 1977 visit to Jerusalem, which signified that brilliant strategist’s severing Egypt’s alliance with the Soviet Union and adopting a pro-American foreign policy. Although it remains to be seen how Egypt’s military echelon will relate to the Muslim Brotherhood, optimism is not in order: both parties hate Israel.

Turning to Mohamad Morsi: he is an alumnus of Cairo University and the University of Southern California. Dr. Morsi, now a member of Egypt’s parliament, is the Chairman of the Freedom and Justice Party (FJP), founded by the Muslim Brotherhood in the wake of the 2011 Egyptian revolution.

He is unsurprisingly called an “Islamist”—a monotonous euphemism for Muslims who typically harbor an Islamo-Nazi mentality. That Hamas cheered Morsi’s victory is also unsurprising: Hamas is the Palestinian wing of the Muslim Brotherhood. Perhaps Drs. Gold and Pipes should take another look at the Hamas Covenant, for this document speaks for its patron and therefore may reveal something ominous about Morsi, but muted by those experts.

I call that document the “Hamas Covenant of Death.” It is a blood-curdling expression of the “Islamist” love affair with death, or what Michael Ledeen calls “necrophilia” in Accomplice to Evil: Iran and the War Against the West (2009). Dr. Ledeen’s book, we note in passing, documents the necrophilia of Iranian President Mahmud Ahmadinejad, who had thousands of Iranian children blown to bits walking across Iraqi land mines in Iran-Iraqi war. This is the same Ahmadinejad who screams “Death to America” and vows to “wipe Israel off the map.”

But let us examine Hamas Covenant of Death, for it manifests the demonic or demented mentality of Ahmadinejad. And here it should be noted that although Morsi, unlike Ahmadinejad, is a Sunni and not a Shiite Muslim, this is little more than a distinction without a difference. Time to call a spade a spade.

“Israel will exist and will continue to exist until Islam will obliterate it …” Thus begins the Hamas Covenant of Death, officially known as “The Covenant of the Islamic Resistance Movement,” which, as indicated, is inspired by the mentality of the Muslim Brotherhood.

Now, to grasp the true nature of the war Muslims—Sunni and Shiite—have waged against Jews and the State of Israel, let us explore some passages of that Covenant.

The Covenant refers to the Muslim Arabs of Judea, Samaria, and Gaza as a single “squadron” of the “vast Islamic world.” “Our struggle against the Jews is very great,” and this struggle will go on “until the enemy is vanquished and Allah’s victory is realized.”

The Covenant explicitly refers to the Islamic Resistance Movement as “one of the wings of the Muslim Brotherhood in Palestine.” It calls on all Muslims to “raise the banner of Jihad in the face of the oppressors, so that they would rid the land and the people of their uncleanness, vileness and evils.” Contrary to the puerilities of the media and the obscurantism of “experts,’ the Muslim Brotherhood is not simply a fanatical sect of Islam; it lives authentic Islam, resurgent and animated by the global ambitions of the seventh-century Mohammed, after whom Egypt’s new president is named.

The Covenant continues: “The Islamic Resistance Movement is a distinguished Palestinian movement, whose allegiance to Allah, and whose way of life is Islam. It strives to raise the banner of Islam over every inch of Palestine.” In contrast to the short-term pragmatism of democracies, “The Islamic Resistance Movement aspires to the realization of Allah’s promise no matter how long that should take. The Prophet, Allah bless him and grant him salvation, has said: ‘The Day of Judgment will not come about until Muslims fight and kill the Jews, when the Jew will hide behind stones and trees. The stones and trees will say O Muslim, there is a Jew behind me, come and kill him.’”

Unlike the signatories of the American Declaration of Independence, whose fondest wish was for all mankind to enjoy the rights to “Life, Liberty, and the pursuit of Happiness, the of the Islamic Covenant teaches Muslims that “Death for the sake of Allah as the loftiest of wishes.” Indeed, the Covenant declares that these Muslims are prepared to drench “Palestine” with blood. Hence democratic opinion makers and decision makers should understand that Muslims are not about to be bought off with the bourgeois policy of “territory for peace.” This policy arouses Muslim contempt for Jews; it makes Jewish blood cheap by making the Holy Land cheap.

This is the same policy of appeasement that truncated and dismantled Czechoslovakia and led to the Second World War. It is a liberal-leftwing policy, and it is quite prevalent today among multicultural relativists in Israel, in America, and in Europe—and is pursued by many experts and policy-makers afraid to call a spade a spade when speaking of Islam. Contrast this tough and unambiguous statement of the Hamas wing of the Muslim Brotherhood: “The Land of Palestine is an Islamic Waqf consecrated for the future for the future Muslim generations until Judgment Day. It, or any part of it, should not be given up.”

With utter contempt for Israelis and Americans who call for a ”two-state solution” to the conflict between Israel and the “Palestinians”—a mindless manifestation of moral equivalence—the Hamas Covenant of Death proclaims, “There is no solution for the Palestinian question except through Jihad. Initiatives, proposals and international conferences are all a waste of time and vain endeavors,” which describes the bland, democratic menu of men without chests.

Lacking is the stamina to confront and overcome the hydra of another “evil empire,” whose Covenant is deadlier than the Communist Manifesto. “The day the enemies usurp part of Muslim land, Jihad becomes the individual duty of every Muslim. It is [therefore] necessary to instill in the minds of the Muslim generations that the Palestinian problem is a religious problem, and should be dealt with on this basis.” Hence the Covenant enjoins upon Muslims the following oath: “I swear by the holder of Muhammad’s soul that I would like to invade and be killed for the sake of Allah, then invade and be killed, and then invade again and be killed.”

Conclusion

With the Muslim Brotherhood poised to reign over Egypt—but therefore the Sinai—and with Hamas entrenched in Gaza, we are witnessing a process pointing to the fulfillment of the prophecy of Anwar Sadat, or so we may conclude from these statements of his:

● In a Cairo Mosque Sadat proclaimed: “The jihad is a religious duty of all Muslims.”

—John Laffin, The Arab Mind Considered (New York: Taplinger, 1975), 152.

● Interviewed in al-Anwar on June 22, 1975, Sadat declared: “The effort of our generation is to return to the 1967 borders. Afterward the next generation will carry the responsibility.”

—Y. Harkabi, Arab Strategies and Israel’s Response (NY: Free Press, 1977), 55.

● Finally, in an October 19, 1980 interview with the New York Times, Sadat boasted: “Poor Menachem [Begin], he has his problems … After all, I got back … the Sinai and the Alma oil fields, and what has Menachem got? A piece of paper”

Enter Mohamad Mursi.

ENDA Makes as Little Sense as Chemotherapy for a Cold June 18, 2012

Posted by Daniel Downs in economy, employment, Freedom of Speech, law.
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by Hans Bader

American business is quite happy to hire gay and lesbian employees, and needs no federal mandate to do so. Virtually all Fortune 500 companies already ban sexual orientation discrimination in their own hiring and firing, and have done so for years. But on June 12, a Senate Committee held a hearing to promote a bill, the Employment Non-Discrimination Act (ENDA), that would hold private employers liable for potentially hundreds of thousands of dollars in punitive damages and attorneys fees if a judge or jury later decides they committed discrimination based on sexual orientation. Never mind the fact that free-market competition already provides private employers with a powerful incentive not to discriminate, as even the bill’s supporters, like the Center for American Progress (CAP), have admitted in the past. As CAP conceded on March 22, “Businesses that discriminate based on a host of job-irrelevant characteristics, including sexual orientation . . put themselves at a competitive disadvantage compared to businesses that evaluate individuals based solely on their qualifications and capacity to contribute.”

Since American business seldom discriminates based on sexual orientation, the potential benefits of ENDA are limited, at best. But ENDA would impose real and substantial costs on business, and it could trigger conflicts with free speech and religious freedom. Even if chemotherapy cured a cold, you wouldn’t use it, because the “cure” would be worse than the disease. ENDA should be rejected for the same reasons: its costly “cure” is not warranted given the increasing rarity of private-sector discrimination against gays.

ENDA would harm even businesses that hire and fire based on merit, not sexual orientation. It would also erode free speech in the workplace about sexual-orientation-related political and religious issues.

Since ENDA is modeled on other employment laws that have produced many meritless discrimination lawsuits (through one-way fee shifting), ENDA, too, is likely to result in wasteful litigation and settlements paid out by employers that are actually innocent of discrimination (most employment discrimination claims turn out to be meritless). ENDA’s attorney fee provision, Section 12, uses the same language as other federal employment laws that incorporate the Christiansburg Garment standard for awarding attorneys fees — a sort of “heads I win, tails you lose” scheme under which the plaintiff gets his attorneys fees paid for by the other side if he wins, but the employer has to pay its own attorneys fees even if it wins (a win at trial typically costs an employer at least $250,000). While the language of ENDA’s attorney-fee provision is seemingly neutral on its face, similar provisions in other federal employment laws have consistently been interpreted by the courts as favoring plaintiffs under the Supreme Court’s 1978 Christiansburg Garment decision. Moreover, even if the plaintiff’s case is so insubstantial that the plaintiff only wins $1 at trial, the employer can still be ordered to pay tens of thousands of dollars in attorneys fees. For example, an appeals court ruling awarded $42,000 in attorneys fees to a plaintiff who suffered only $1 in damages. (See Brandau v. Kansas, 168 F.3d 1179 (10th Cir.1999).) These attorney fee provisions will lead to some employers paying thousands of dollars to plaintiffs just to settle weak or meritless discrimination claims.

While the typical private employer has no reason to hire or fire based on sexual orientation (and few do), ENDA’s Section 4(a)(1) reaches beyond hiring and firing to vaguely defined “terms, conditions, or privileges of employment,” which courts interpret as requiring certain restrictions on speech. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court interpreted the same vague “terms or conditions” language in another statute, Title VII of the Civil Rights Act, as requiring employers to prohibit employee speech or conduct that creates a “hostile or offensive work environment” for women or blacks. The employer is liable for damages and attorneys fees if a court decides that it was negligent in failing to detect, prevent, or punish such speech or conduct. Such “hostile work environment” liability applies to each and every protected class covered by federal law, such as race, religion, national origin, and disability, not just gender. See, e.g., Amirmokri v. Baltimore Gas and Electric Co., 60 F.3d 1126 (4th Cir. 1995) (employer was liable for national-origin based taunts and harassment by plaintiff’s co-workers).

If ENDA were enacted, such liability would also cover sexual orientation-based hostile work environments, meaning that a company would potentially be liable for a “hostile work environment” resulting from anti-gay things its employees say (even if those employees’ sentiments are at odds with the company’s own views or policies). Thus, to avoid liability, an employer might have to silence employees with political opinions that are perceived as anti-gay, and prevent such employees from expressing political views such as opposition to gay marriage or gays in the military that could contribute to a “hostile work environment.” As Professor Eugene Volokh, one of America’s leading First Amendment scholars, has noted, political speech can create a “hostile work environment,” despite the serious First Amendment problems that creates. While I have supported gay marriage and the inclusion of gays in the military, I do not think employers should be sued because their employees express contrary views.

Although Section 4(g) of ENDA only bans “disparate treatment” based on sexual orientation, some courts have interpreted “disparate treatment” to include speech or conduct by the complainant’s co-workers that affects the complainant’s work environment, even when the speech is not aimed at the complainant, and is not motivated by the complainant’s sex or minority status. For example, in Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010), a unanimous court of appeals held that a female employee could sue over recurring offensive speech, such as co-workers listening to vulgar radio programs and a co-worker who looked at a picture of a nude woman on his computer screen, even though most of this speech was not aimed at her, and not motivated by her (or anyone’s) sex. The appeals court expressly labeled this “disparate treatment,” even though in reality, there was no differential treatment, since her male co-workers would have been just as vulgar even if there were no women around.

The possibility that ENDA will be used to silence speech about gay issues is very real. Some supporters of ENDA openly hope to use it to squelch viewpoints that offend them. For example, a detractor of the New York Post, who dislikes its coverage of gay celebrities and public figures, hopes that the Post’s gay employees will sue the newspaper if ENDA passes, under the theory that its content creates a hostile work environment for gay employees. In Seattle, a city human rights commission official suggested that complainant John Dill might have had a valid sexual-orientation harassment claim based on allegations that a co-worker listened to conservative talk radio shows and posted a letter from a congresswoman skeptical of repealing the military’s ban on gays.

“Hostile environment” liability could pose a real threat to religious businesses like Christian bookstores that are not run by a church or religious institution (and thus are not not exempt under Section 6 of ENDA). Working in a fire-and-brimstone conservative Christian bookstore might be said to be a “hostile or offensive environment” for a gay or lesbian employee, but the contents of the bookstore ought nonetheless to be protected by the First Amendment. The primary purpose of the First Amendment is to protect religious and political speech that is so offensive to some people that it risks being suppressed. But there is no guarantee that the courts would respect the First Amendment in the event of a clash between ENDA and the First Amendment. Some courts are eager to stretch anti-discrimination laws to punish conservative Christians who object to gay marriage, as is illustrated by a recent New Mexico Court of Appeals ruling that expanded the reach of the state’s law banning discrimination in public accommodations, and gutted the New Mexico Religious Freedom Restoration Act, in order to uphold a penalty imposed on an Evangelical Christian wedding photographer who did not want to photograph a lesbian couple’s commitment ceremony. I earlier discussed that court ruling in Elane Photography v. Willock, and how it violates First Amendment free-speech rights, at this link. (There are only a few court rulings that have limited the reach of “hostile environment” liability for religiously or politically-offensive speech at all. See Meltebeke v. B.O.L.I., 903 P.2d 351 (Or. 1995) (overturning fine for religious harassment of private employee, and citing state religious-freedom guarantees); Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010) (dismissing racial harassment lawsuit over racially-charged anti-immigration emails, because of First Amendment free speech rights.). But those rulings seem to be the exception rather than the rule, and the EEOC has completely disregarded them, as I explained at this link.)

It is conceivable that if ENDA is passed, a civil-rights agency could use it to pressure some employers to adopt sexual-orientation-based hiring goals or veiled quotas, notwithstanding the language of Section 4(f) of ENDA. Activists have already pressured President Obama to mandate sexual-orientation-based hiring goals for government contractors. The Supreme Court’s decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), permits employers to be held liable for “disparate treatment” (not just “disparate impact”) if circumstantial evidence in the form of workplace racial imbalances suggests that the employer is guilty of discrimination. Statistical disparities are treated as creating a “prima facie” case of “disparate treatment” if the racial or sexual composition of the employer’s workforce is at least two standard deviations away from the purported norm. But no one knows exactly what that norm is for sexual orientation, although the gay percentage of the workforce is probably less than five percent for most occupations. As the leading pollster Gallup notes, Americans tend to vastly overestimate the percentage of the population that is gay. “Surveys show a shockingly high fraction think a quarter of the country is gay or lesbian, when the reality is that it’s probably less than 2 percent.” Most people erroneously believe that a tenth or more of the population is gay — a gross overestimate based on obsolete research — and a “high” percentage of Americans even believe that a quarter or more of the population is gay. Such overestimates may make employers that have perfectly normal percentages of gay employees look to some civil-rights officials (or jurors) as if they are anti-gay under the logic of the Teamsters decision.

As Garance Franke-Ruta of The Atlantic notes, Americans systematically overestimate the percentage of the population that is gay or lesbian:

In surveys conducted in 2002 and 2011, pollsters at Gallup found that members of the American public massively overestimated how many people are gay or lesbian. In 2002, a quarter of those surveyed guessed upwards of a quarter of Americans were gay or lesbian (or “homosexual,” the third option given). By 2011, that misperception had only grown, with more than a third of those surveyed now guessing that more than 25 percent of Americans are gay or lesbian. Women and young adults were most likely to provide high estimates, approximating that 30 percent of the population is gay. Overall, “U.S. adults, on average, estimate that 25 percent of Americans are gay or lesbian,” Gallup found. Only 4 percent of all those surveyed in 2011 and about 8 percent of those surveyed in 2002 correctly guessed that fewer than 5 percent of Americans identify as gay or lesbian.

Although Section 4(f) of ENDA purports to prohibit quotas and preferences, the courts may well interpret that provision so narrowly as to make it meaningless, as they have done with similar language in other civil-rights statutes, such as 20 U.S.C. 1681(b) and 42 U.S.C. 2000e-2 (j), whose limits on racial and gender balancing and preferences were largely nullified by the courts in cases like Steelworkers v. Weber, 443 U.S. 193 (1979) and Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996).

Finally, in addition to banning sexual-orientation discrimination, ENDA also contains “transgender rights” provisions that ban discrimination based on “gender identity.” Similar prohibitions in state laws created legal headaches for some businesses. One case pitted pitted a transgender employee with male DNA who sued after being denied permission to use the ladies’ restroom, a denial that resulted from complaints filed by female employees. The employer lost in the Minnesota Court of Appeals, but then prevailed in the Minnesota Supreme Court. Another case involved a male-looking person who sued and obtained a substantial settlement after being ejected from the ladies room in response to complaints by a female customer who thought that a man had just invaded the ladies’ room.

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Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.

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