Not an end, but a beginning: The Showdown over ENDA
A number of months ago I wrote in this space about Hate Crimes legislation which was moving through the United States House of Representatives. Since that time, the legislation has passed the House, been included in similar legislation in the United States Senate, and finally passed in the Senate (just last night) when it was tacked on to a defense spending bill - which the President has said could be "veto material" because the Democrat led Congress is forcing the issue on the President, and in turn America.
Meanwhile, another piece of legislation is making it's way through the House of Representatives; this legislation is known as the Employment Non-Discrimination Act or ENDA. This legislation seeks to add sexual orientation as a protected class in the hiring and firing process. Like the Hate Crimes legislation which preceeds it, ENDA has some constitutional problems:
First among them is Freedom of Religion as outlined within the First Amendment in the Constitution. Supporters of ENDA would dismiss this because of the religious exemption which does exist within the legislation. This exemption allows churches to be protected, as this legislation sees churches to be centers of theology and prositilization. However, it is unclear if this exemption covers religious schools or religious organizations which are not churches; even if it was clear, the government would then be the decider of who applies and who does not, who gets to actually live by their religious convictions in every area of their lives and who does not. It's called checking your religion at the door - something an indiviual whould never have to do. If they have to, their freedom of religion has been violated.
Second, once again, is the issue of the Fourteenth Amendment. Under this amendment, no person shall be deprived of life, liberty, or property without the due process of the law. This amendment, when ratified, concerned situations under which a person was born, such as gender, race, ethnicity, and skin color. Individuals and organizations who have lobbied for this legislation (such as Human Rights Campaign) often cite this part of the Constitution in their favor. The problem arises because, while disability can sometimes be a condition at birth, sexual orientation is not - or has not been proven scientifically. Therefore, since that is, in truth, a choice, it is not covered under the Fourteenth Amendment. Under the Fourteenth Amendment, it is considered "applied" to a group of people if the characteristic of this group is immutable, there is a history of abuse, and if there is a lack of political influence. As I have already pointed out, sexual orientation is not immutable. Also, the "alternative lifestyle" lobby has great influence within the political process, typically through the Democratic party. That said, the Fourteenth Amendment would not apply.
Third, again, is the issue of the Tenth Amendment and the Enumerated Powers within the Constitution. This amendment states: "The Powers not delegated to the United States by the Constitution, nor prohibited it by the states, are reserved to the States respectively, or to the people". This is the basis of Federalism; the separation of powers between the State, the states, and the People (the people being the most sovereign part of our American democracy). In this instance, this legislation, if enacted, would override the efforts of the states to create their own ENDA laws - taking said ability away from the states.
Finally, and not a constitutional issue but still a problem is increased litigation. Under this legislation, if made law, the door is opened for additional lawsuits against business who decide not to hire someone. If someone applies for a job, and is not hired, it would be easier to sue that business for discrimination even if the person is not a homosexual, because they could easily claim that they are. If a person is a homosexual, then, even if that is not the reason they are not hired, let's say they were actually not qualified for the job, they could claim their sexual orientation is the reason and either settle out of court - stealing money from a legitimate business - or drag a business into a long and protracted legal situation which would cost the business a lot of money to see through; this is bullying, no doubt.
It is interesting to note that in previous sessions of Congress, this legislation has been intorduced but has never gotten out of committee. With the switch in majority control last November, all of the sudden this has become an issue which will see time on the House floor, soon. What is this really? It's the new majority doing all they can to please a key voting demographic.
If this makes it into law, it will not be an end, but just the beginning of an agenda coming into political promenence which would never pass at the ballot box if it were left up to the American people and the entire truth given to them.
Meanwhile, another piece of legislation is making it's way through the House of Representatives; this legislation is known as the Employment Non-Discrimination Act or ENDA. This legislation seeks to add sexual orientation as a protected class in the hiring and firing process. Like the Hate Crimes legislation which preceeds it, ENDA has some constitutional problems:
First among them is Freedom of Religion as outlined within the First Amendment in the Constitution. Supporters of ENDA would dismiss this because of the religious exemption which does exist within the legislation. This exemption allows churches to be protected, as this legislation sees churches to be centers of theology and prositilization. However, it is unclear if this exemption covers religious schools or religious organizations which are not churches; even if it was clear, the government would then be the decider of who applies and who does not, who gets to actually live by their religious convictions in every area of their lives and who does not. It's called checking your religion at the door - something an indiviual whould never have to do. If they have to, their freedom of religion has been violated.
Second, once again, is the issue of the Fourteenth Amendment. Under this amendment, no person shall be deprived of life, liberty, or property without the due process of the law. This amendment, when ratified, concerned situations under which a person was born, such as gender, race, ethnicity, and skin color. Individuals and organizations who have lobbied for this legislation (such as Human Rights Campaign) often cite this part of the Constitution in their favor. The problem arises because, while disability can sometimes be a condition at birth, sexual orientation is not - or has not been proven scientifically. Therefore, since that is, in truth, a choice, it is not covered under the Fourteenth Amendment. Under the Fourteenth Amendment, it is considered "applied" to a group of people if the characteristic of this group is immutable, there is a history of abuse, and if there is a lack of political influence. As I have already pointed out, sexual orientation is not immutable. Also, the "alternative lifestyle" lobby has great influence within the political process, typically through the Democratic party. That said, the Fourteenth Amendment would not apply.
Third, again, is the issue of the Tenth Amendment and the Enumerated Powers within the Constitution. This amendment states: "The Powers not delegated to the United States by the Constitution, nor prohibited it by the states, are reserved to the States respectively, or to the people". This is the basis of Federalism; the separation of powers between the State, the states, and the People (the people being the most sovereign part of our American democracy). In this instance, this legislation, if enacted, would override the efforts of the states to create their own ENDA laws - taking said ability away from the states.
Finally, and not a constitutional issue but still a problem is increased litigation. Under this legislation, if made law, the door is opened for additional lawsuits against business who decide not to hire someone. If someone applies for a job, and is not hired, it would be easier to sue that business for discrimination even if the person is not a homosexual, because they could easily claim that they are. If a person is a homosexual, then, even if that is not the reason they are not hired, let's say they were actually not qualified for the job, they could claim their sexual orientation is the reason and either settle out of court - stealing money from a legitimate business - or drag a business into a long and protracted legal situation which would cost the business a lot of money to see through; this is bullying, no doubt.
It is interesting to note that in previous sessions of Congress, this legislation has been intorduced but has never gotten out of committee. With the switch in majority control last November, all of the sudden this has become an issue which will see time on the House floor, soon. What is this really? It's the new majority doing all they can to please a key voting demographic.
If this makes it into law, it will not be an end, but just the beginning of an agenda coming into political promenence which would never pass at the ballot box if it were left up to the American people and the entire truth given to them.
posted by A. R. Welty at 10:19 PM
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