Senate

Senate Mulls Outlawing Anti-Gay Job Discrimination; What Will Come of Freedom of Association?

Most Americans now support such laws

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The kind of rainbow flag the government stitches together after citizens have been fighting the fight for decades.
Credit: procsilas / Foter.com / CC BY

The Senate is scheduled to vote today on the Employment Non-Discrimination Act (ENDA), which adds sexual orientation and gender identity to the list of verboten reasons to deny somebody employment. According to The Washington Post, all 55 Democrats are on board. They need five Republicans to join their side to avoid a filibuster and that may well happen.

Then, of course, it will die in the Republican-controlled House. It is probably not cynical to suggest that this is all part of the plan. Okay – maybe it's a little cynical. But gays were used as a wedge issue by the right back in 2004 in the midst of the struggling Iraq War. Now the left's signature achievement under Barack Obama's administration is struggling. Given the incredibly quick (historically speaking) shifts in opinion in favor toward accepting gay people, it would be foolish of the left not to try to run with this and force some tough choices on Republican congress members leading up to the midterms. The Washington Post notes that support for ENDA-like laws is now in the majority in all states:

Nearly all recent opinion polls indicate that a large majority of the American public — more than 70 percent — supports efforts to make employment discrimination against gay and lesbians illegal. Of course, these national numbers are not what the senators are likely to care about. However, when we use national polls to estimate opinion by state, we find that majorities in all 50 states support ENDA-like legislation (note that in 1996, majorities in only 36 states supported ENDA). Today, public support ranges from a low of 63 percent in Mississippi to a high of 81 percent in Massachusetts.

Libertarians who believe that hiring policies – even discriminatory ones -- fall under the First Amendment's "freedom of association" provision may end up getting lumped in with the religious right on this one (not that this is a new thing).

I wrote about the prospect of ENDA's passage back in April, wondering whether there was actually data that backed up a real need for laws to protect against anti-gay discrimination in the first place. Andrew Sullivan noted on Sunday that following the passage of the federal hate crime laws in 2009, there have been only two prosecutions for anti-gay cases. But despite Sullivan's previous opposition to anti-discrimination laws, he has relented:

[T]he libertarian position on such crimes is largely moot – for good and ill. The sheer weight of anti-discrimination law is so heavy and so entrenched in our legal culture and practice, no conservative would seek to abolish it. It won't happen. And if such laws exist, and are integral to our legal understanding of minority rights, then to deny protection to one specific minority (which is very often the target of discrimination) while including so many others, becomes bizarre at best, and bigoted at worst. Leaving gays out sends a message, given the full legal context, that they don't qualify for discrimination protection, while African-Americans and Jews and Catholics and Latinos and almost everyone else is covered by such protections. It's foolish to stick to a principle, however sincere, in the face of this reality.

Secondly, the federal government has ceased its own discrimination policies in marriage and military service and therefore now has some small sliver of moral standing to lecture private individuals across all states. My objections twenty years ago are now moot.

Put those two developments together and I would not vote against ENDA if I, God help us, were a Senator. But I would vote for it with my eyes open. I don't think it will make much difference in reality just as I don't believe hate crime laws make much difference in reality. Of course that's an empirical question and I promise readers horrified by my luke-warm support of this that I will gladly recant such skepticism if ENDA truly does lead to a flurry of successful suits across the country against anti-gay bias.

I think I'll stick to my sincere principles. The ending of the federal government's discriminatory practices still doesn't give them moral standing to lecture anybody about anything. Governments are not our moral guardians or arbiters and is still prone to extending and retracting various privileges to certain citizens on the basis of who is in control.

Over at Cato, Walter Olson out-cynics me by suggesting that pushing ENDA is a way for politicians to take credit for cultural shifts they had nothing to do with. He also wonders if there is an upper limit the number of categories where private actors' rights of freedom of association will no longer apply:

[A]t some point we do need to stop adding new groups to the parade—either that, or see freedom of association turn into a presumption of something else. At what point do we say no to future demands that protected-group status be accorded to employees based on political and controversial systems of belief, physical appearance (the "looksism" issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few of the areas that in fact have been the subject of real-world agitation in recent years? If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other "adverse action" against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

That's reason enough to oppose ENDA, as I see it.