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Stop ENDA – Special Gay Rights Legislation October 23, 2007

Posted by Daniel Downs in congressional powers, Constitution, deception, Democrats, Employment Non-Discrimination Act, family, First Amendment, Freedom of Assembly, Freedom of Religion, Freedom of Speech, gay politics, liberals, morality, news, politics, work.

Congress is in a full court press to plague Americans with more oppressive laws violating the Constitution, civil rights, and moral decency. Last week it was SCHIP. According to Christian Post reporter Lawrence Jones, Congress plans to vote this week on the special workplace rights bill for gays and transsexuals called Employment Non-Discrimination Act.1 ENDA is supposed to solve presumed discrimination against gays and other sexual deviants at work. With the help of liberals like Edward Kennedy, gays have been attempting to pass this bill since 1994.2

One important question is whether gays and transsexual workers are actually being discriminated against in the workplace. If employment statistics are any indication, gays are hardly suffering much discrimination. For example, over 90% of all major corporations already include sexual-orientation in their non-discrimination policies and over 50% provide health benefits for the domestic partners of gay employees.3 Gays are being actively recruited by these corporations. As a group, gays possess higher incomes than most Americans. Their after-tax income is $640.1 billion, which means the average gay person has about $149,000 to spend.4 Less than 1% of all employment related discrimination complaints are from gays.5 Evidently, no serious problem of employment discrimination actually exists.

Another question is whether ENDA is legal. It may seem like an odd question but is gay rights law like ENDA constitutional? As explained by Roger Clegg, general counsel of the Center for Equal Opportunity, ENDA is not legal for at least three reasons.

1.) Congress has no authority—no enumerated powers—to even propose let alone approve this type of law.6

2.) The bill attempts to justify its authority by “invoke[ing] congressional powers, including the powers to enforce the 14th amendment to the Constitution, and to regulate interstate commerce and provide for the general welfare pursuant to section 8 of article I of the Constitution.”7 Clegg explains that congressional authority under section 8 does not apply to ENDA. It only deals with raising “Taxes, Duties, Imposts, and Excises.”8 The commerce clause only permits Congress to “regulate Commerce … among the several States” not individual businesses within states. According to the Supreme Court, Congress is required to show substantial “effect” on interstate commerce issues and not merely an effect.9 “It was certainly arguable in 1964 that the widespread and systemic discrimination against blacks in large parts of the country had a substantial effect on interstate commerce. It is arguable that discrimination against women and ethnic minorities had such a similar effect, too; less so in the case of religious discrimination. But can it be credibly argued that,” in 2007, “discrimination against homosexuals has a “substantial” effect on interstate commerce?”10

The 14th amendment guarantees that states shall not make or enforce any law abridging the privileges or immunities of citizens; nor depriving any person of life, liberty, or property, without due process of law; nor denying to any person equal protection of the laws. This amendment was originally passed to protect the rights of slaves and to prevent discrimination based on “individual’s race, color, religion, sex, or national origin” as defined in the 15th amendment and implemented by Civil Rights Act of 1965. Notice sexual orientation is not mentioned and for good reason. Civil rights law was created to protect individuals from being discriminated against because of immutable human characteristics such as skin color and gender. Homosexuality is not such a characteristic nor is transsexuality. Therefore, ENDA also violates the Civil Rights Act, according to constitutional lawyer J. Matt Barber.11

3.) ENDA also violates both first amendment rights and the property rights of individual business owners. The bill gives the federal government authority to dictate to individual business owners how to use their property, how to run their business, and who they can or cannot hire, promote, and fire. Congress attempts to justify this suppression of rights on the same basis as they did for blacks and women. According to Clegg,

“Racial discrimination presented an extraordinary situation justifying departure from the usual free-market presumptions. It was widespread, blatant, and often governmentally codified and mandated; it was a historic problem, national in scope, which was clearly not susceptible to local resolution. Discrimination against homosexuals is simply not in this league.”12

It is one thing to prevent wide spread discrimination against people of color, but it is another to criminalize hiring practices based on behavioral issues. Homosexuality is a behavioral issue. Pregnancy of employees is a behavioral issue. The affects of alcoholism and drug addiction on productivity is a behavioral issue. The ability of disabled persons to perform certain jobs is another behavioral issue. All except disability are private behavior issues. All of these behavioral issues can and have impacted business operations, productivity, and profitability in very negative ways.

No government has the authority to tell individual businesses whether they can hire or fire people with these kinds of behavioral problems—not even gay behavior. Consider the absurdity of forcing businesses to accommodate transsexuals. Medical and gay studies show many men and women members of the gay community are actually bi-sexual.13 How then could an employer be certain that a man who thinks he is a woman and wants to use the woman’s bathroom or showers does not have something else in mind? Why would normal female employees not have problem with it? According Barber, this amounts to legalized sexual harassment.14 Why should employers tolerate the negative impact on other workers who do not feel comfortable working with transsexuals, gays, or drug addicts? Should employers have to lose good employees whose work is affected by it?

It is unconscionable that government would even attempt to force people—business owners or their employees—to associate with others whose behaviors are considered morally reprehensible. According to Clegg, “millions of Americans believe that homosexual behavior violates sincerely and deeply held religious beliefs. It is, in other words, a sin.”15 Clegg continues by mentioning three ways government legislates against sin. Sometimes laws are passed making sins illegal such as stealing and murder; sins like disobedience to parents are not given any legal sanction; and sins like fornication and sodomy are made illegal but rarely prosecuted. The primary function of the latter type of legal sanction is to stigmatize unacceptable behaviors.16

Proponents of ENDA argue that gays should not be penalized for private behavior. What about the privacy rights of business owners? If private behavior is a free and voluntary association of individuals and the free use of personal property, then private business owners have the right to refuse to hire morally unconscionable persons. When they choose to do so, their “private actions, voluntarily undertaken, are the most appropriate way in our society to make the point that, legal or not, certain behavior is unwelcome and to be discouraged — that there will be social, even economic, penalties to be paid.”17 ENDA prevents this.

The problem ENDA proposes is more than just violating the First Amendment rights of individual business owners and their employees. What gays apparently want and their supportive employers and politicians intend to give them is special rights, not equal rights. Congress expects Americans to believe the deceptive rhetoric about gay depravation, victimization, and discrimination, not because it is real, but because they intend to allow gays flaunt their behavior in the face of society.

Yet, a more fundamental problem than gay special rights is the blatant and continued disregard by liberal politicians towards the rule of law under Constitutional restraints. ENDA is just one more crime against Constitutional law. Liberal lawmakers must be stopped. America does not need tyrants making arbitrary law to oppress and offend Americans. Therefore, Americans must plague their representatives with telephone calls, faxes, e-mails, and letters telling them to stop ENDA from becoming law. All Americans who believe federal lawmakers should honor their oath of office and uphold the Constitution should let their representatives know that is expected too.

1. Lawrence Jones, Dems Advance Bill to Grant Special Workplace Rights to Homosexuals, The Christian Post, October 19, 2007.

2. Senate Report 107-341.

3. Employment Non-Discrimination Act, Human Rights Campaign, August 25, 2007. Marc Gunther, Queer Inc. How Corporate America fell in love with gays and lesbians. It’s a movement, Fortune, November 11, 2006.

4. Gay Buying Power Projected at $641 Billion in 2006, Echelon Magazine, 2005.

5. The Employment Non-Discrimination Act, Concerned Women For America, November 18, 1997

6-10. Roger Clegg, Bad ENDA: More bad Legislation, National Review Online, May 9, 2002.

11. J. Matt Barber, ENDA First Amendment, The Provident Journal, October 1, 2007.

12. Clegg, Bad ENDA.

13. BA Evans, RA Bond, and KD MacRae, Heterosexual behaviour, risk factors and sexually transmitted infections among self-classified homosexual and bisexual men, International Journal of STD & AIDS (9, 1998): 129-133. Timothy J. Dailey, The Negative Health Effects of Homosexuality, Insight at Family Research Council, March 1, 2001.

14. Barber, ENDA.

15-17. Clegg, Bad ENDA.

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1. dafaster » Blog Archive » Stop ENDA - Special Gay Rights Legislation - October 24, 2007

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2. Daniel - October 26, 2007

Typical hypocrisy- what about the special protections for religion? Why do you people never have a problem with protecting that CHOICE of behavior? You can’t prove sexuality is a choice, but nobody denies that religion is definitely a choice. So using your logic, I should be able to fire someone- or deny them housing- based on their religious choice. If business & property owners have the right to discriminate, then make the playing field level and I would have no problem. If you can fire me for being gay, then I can fire someone for being religious. Are you willing to give up YOUR “special rights” ?????

3. Daniel Downs - October 27, 2007

DLH – It is only hypocrisy according to liberal secular beliefs. I do not believe them. They cannot be supported by American legal history. Secular beliefs are the hypocrisy. Any law based on them is typically unconstitutional. The Declaration never made all supposed rights equal; it made no behavior equal to all others. It made all human beings and their inherent characteristics like race and gender equal under law. First Amendment rights were not trumped by the 13th, 14th or 15th amendments. The rights Congress has is what is enumerated on article 1 and section 8, which makes ENDA beyond their authority.

Besides, sexual behavior is not the same as religious behavior. Religious behavior is specially guaranteed by the Constitution. Any sexual behavior is not. Legal historians like BF Wright prove that the Constitution was framed on natural law principles. Any unnatural behavior is and was immoral, evil, and illegal. That’s why it was illegal in all states until liberal secularism was vaunted against natural law and the Constitution.

4. Robert - December 31, 2007

Good thoughts.

I just saw today that it looks like Mitt Romey is flip-flopping on ENDA now too:

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