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Bush to veto ENDA?

A brief statement from the Office of Management and Budget released this afternoon says that Bush's advisors will recommend that he veto the Employment Non-Discrimination Act (ENDA), H.R. 3685, the first-ever federal bill that would protect gays from employment discrimination. The bill has not been voted on in the House; no action is scheduled yet in the Senate. The OMB statement cites a mix of policy and constitutional concerns.

A similar statement from Bush's advisors, also citing policy and constitutional concerns, was issued with respect to the Hate Crimes bill, which has not yet reached his desk.

Notably, the OMB statement on ENDA does not give, as a reason to veto, opposition in principle to an employment bill protecting gays from discrimination. Nor does the statement cite general libertarian qualms with anti-discrimination laws. The advisors instead give four reasons, which I react to briefly here:

(1) Religious freedom concerns. The religious freedom concern is very weak, given the unprecedentedly broad "religious organizations" exemption in the bill. See ENDA Sec. 3(a)(8) (definition of "religious organization") and Sec. 6 (exemption of religious organizations). The law does not unconstitutionally burden the right to free exercise of religion, as presently understood by the Court, since it applies generally to all covered entities whether or not they claim a religious objection to compliance.

(2) Sovereign immunity. Given the Court's very expansive, non-textual, and ahistorical present understanding of sovereign immunity and the Court's close limits on Congress' remedial and substantive power under Section 5 of the 14th Amendment, there may well be a constitutional problem with the section of the law that authorizes money damages in lawsuits against state governments. See ENDA Sec. 11. The rest of the law is perfectly constitutional and the bill contains a severability provision. ENDA Sec. 16. As we know, President Bush has no problem signing laws he believes are unconstitutional in part.

(3) Litigation arising from imprecise terms. "Perceived" sexual orientation, as used in ENDA Sec. 4(a)(1), does not seem especially imprecise to me, especially given that "sexual orientation" itself is given a narrow definition in ENDA Sec. 3(a)(9). The OMB statement does not explain why it might be troublingly imprecise. "Association," used in Sec. 4(e), likewise has meaning in federal statutory and constitutional law and the OMB does not explain why it is too vague here. There will be litigation around the edges of this law, as there always is, but the use of similar terms in the Americans with Disabilities Act has not produced voluminous litigation.

(4) "Sanctity" of marriage under federal law. Mention anything gay these days and the administration rushes to the defense of marriage. ENDA does not alter the federal definition of marriage as the union of one man and one woman given in the 1996 Defense of Marriage Act. ENDA also does not buttress same-sex marriage in the states. In fact, ENDA specifies in Sec. 8(b) that employers will not be required to treat an unmarried same-sex couple like a married couple for purposes of employee benefits. The implication, I suppose, is that an employer might be required to treat a married same-sex couple like a married opposite-sex couple for purposes of benefits since to do otherwise would amount to sexual-orientation discrimination. But I think the argument likely to be accepted by federal courts will be that "married" in this section refers to the federal definition of "marriage" under DOMA rather than to a state's own definition of marriage. The other reference to marriage in the bill, in Sec. 8(a)(3), simply prohibits an employer from using marriage as a proxy for sexual-orientation discrimination (but the bill otherwise prohibits disparate impact claims, see ENDA Sec. 4(g)). Neither of these sections referring to marriage alters the federal definition of marriage, requires a state to recognize same-sex marriages, or even requires an employer to treat an employee with a same-sex partner the same as an employee with an opposite-sex spouse.

The president's advisors now join an alliance of strange bedfellows, including religious-right groups like the anti-gay Americans for Truth, and gay-rights organizations like Lambda Legal, NGLTF, and more than 300 other gay/transgender organizations that are all trying to kill ENDA for their own reasons. The OMB statement makes it clear that even the stripped-down version of ENDA the House is considering, which was drafted to anticipate the sorts of concerns Bush's advisors are now raising, faces a steep climb. An even more expansive bill of the sort many gay-rights groups are insisting on would likely be a complete non-starter in both the Senate and the White House.

Whether Bush will actually veto the bill if it ever reaches his desk is unknown. The reasons given for a veto by OMB seem transparently thin, which suggests either that they're a sop to religious conservatives and that Bush may sign ENDA anyway or that they're a pretext for deep political concerns Congress simply won't be able to allay while Bush is president. It's still worth it for political reasons to pass a bill the President may well veto, just as it was politically advantageous (according to gay groups) to pass the seemingly doomed Hate Crimes bill. But a dose of cold realism about the law's prospects until at least 2009 has now been added to the mix.

UPDATE: Chris Crain offers some useful additional insights on the possibility of a Bush veto here.

LTEC (mail) (www):
Just a note to remind the conspiracy that there exist people (such as myself) who object to laws against discrimination by private companies -- including racial, sexual, religious, etc. And many of the people who profess to support such laws are lying, as shown by their support for "affirmative action".
10.23.2007 11:31pm
DangerMouse:
Religious freedom concerns. The religious freedom concern is very weak...

Sorry, but all around the world these kinds of laws have been shown to suppress the free exercise of religion. See here.
10.23.2007 11:39pm
Arvin (mail) (www):
Sorry, but all around the world these kinds of laws have been shown to suppress the free exercise of religion.

So do anti-race discrimination laws. Hell, so do no-sacrificing-children-at-the-altar-of-pagan-god laws.
10.23.2007 11:49pm
DangerMouse:
So do anti-race discrimination laws. Hell, so do no-sacrificing-children-at-the-altar-of-pagan-god laws.

I forgot that no comparison is too idiotic in order to push for gay rights. Let's compare orthodox Christianity to child sacrifice! That'll really get the people to support this law!
10.23.2007 11:56pm
JLV:

Sorry, but all around the world these kinds of laws have been shown to suppress the free exercise of religion.


Doesn't matter whether they do (my opinion) or do not. Scalia killed any protection for accidental interference against religious exercise in Employment Division v. Smith (he'd like to do the same for accidental interference against speech).
10.23.2007 11:59pm
Arvin (mail) (www):
I forgot that no comparison is too idiotic in order to push for gay rights. Let's compare orthodox Christianity to child sacrifice! That'll really get the people to support this law!

Support or not support the law, if you want to claim that something should not be law because it prohibits freedom of religion, then you should be prepared to have your view challenged as wrong, or at least inconsistent. If you instead want to make a claim that orthodox Christianity should somehow be more protected than the World Church of the Creator or other religions, then make that claim instead.
10.24.2007 12:04am
Daniel Chapman (mail):
Uhhh... it should be, and it IS more protected than any (hypothetical, of course) religion that sacrifices children. I'd think that's so obvious I wouldn't have to point it out.
10.24.2007 12:09am
DangerMouse:
Support or not support the law, if you want to claim that something should not be law because it prohibits freedom of religion, then you should be prepared to have your view challenged as wrong, or at least inconsistent.

If you think your little "child sacrifice" quip was a challenge, then I'm afraid that UCLA isn't doing you any favors.
10.24.2007 12:14am
Cornellian (mail):
Sorry, but all around the world these kinds of laws have been shown to suppress the free exercise of religion.

Yes, just like Title VII has forced the Catholic Church to hire female priests.

Or not.
10.24.2007 12:28am
DangerMouse:
Yes, just like Title VII has forced the Catholic Church to hire female priests.

Carpenter says that there's an unprecedently broad definition of "religious organization." Such a definition didn't stop the California Courts from forcing Catholic Charities to offer birth control pills, which is against its religious beliefs.

You and Carpenter can claim that laws like this have no effect on the Church, but the news headlines keep disagreeing with you.

Why not just drop the charade and admit that the intent of these laws is to punish people for their religious beliefs?
10.24.2007 12:38am
BruceM (mail) (www):
Since when does the Bush administration care about what is and is not constitutional?
10.24.2007 12:51am
Daniel Chapman (mail):
oooo... BURN! You GOT 'em, Bruce!
10.24.2007 1:02am
John (mail):
I think Dale is wrong in criticizing the "imprecision" argument. Here is the basic statutory prohibition:

"It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity;..."

Here are the relevant definitions:

"The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."

"The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality."

Now, consider discrimination based on "gender-related... appearance." How do you defend the suit when you fire some one for wearing garish earrings, short skirts, or other distractions? If a man was the one wearing the earrings and short skirt, can you defend on the ground that you would have fired a woman dressed in that way? I think not--you have discriminated on the basis of gender-related appearance. Even if you might actually win, this is a terrible way to waste court time (or agency time).

I think the lack of precision in these definitions is exactly why the bill should be vetoed, whether or not you accept the other criticisms.
10.24.2007 1:08am
Daniel Chapman (mail):
The "gender identity" part isn't in the bill, john...
10.24.2007 1:10am
Ben P (mail):

Uhhh... it should be, and it IS more protected than any (hypothetical, of course) religion that sacrifices children. I'd think that's so obvious I wouldn't have to point it out.


I disagree.

Although Reynolds v United States is a highly controversial opinion for several reasons, it raised a fundamentally valid point.

It quoted Jefferson as stating that ""the legitimate powers of the government reach actions only, and not opinions."

If you hold the belief that your god requires the regular sacrifice of virgins to placate him into not destroying the world, you have every right to believe that, and that belief is no less protected than any other religious belief.

However, the government can make certain actions illegal, and if we can make the objective determination that an action should be illegal, it cannot be justified merely because someone believes it's necessary.

The proper question then is how much deference can we give to particular actions stemming from religious belief on the grounds that they are supported by religious belief. In holding this the government can only rationally use objective measurements of the actions, otherwise it is passing on the validity of religious beliefs, and hence opinions.

Certainly everyone would agree that the harm from sacrificing unwilling (or even willing) virgins is so great that it cannot be justified by religious belief.

The court in Reynolds found the harm from polygamy so great that it could not be justified by religious belief.

A much closer question might be whether or not the harm caused by allowing an exception for hallucinogenic use based religious belief is outweighed by the deference we would give to religions.
10.24.2007 1:16am
Arvin (mail) (www):
Uhhh... it should be, and it IS more protected than any (hypothetical, of course) religion that sacrifices children. I'd think that's so obvious I wouldn't have to point it out.

First, then the protection is not religiously based, or not entirely. It is also based on something else, such as harm to other human beings.

While this may be obvious to some, the benefit of pointing it out is that one can become more precise in one's objections to certain laws. Clearly, one cannot object to a law simply because it prohibits the complete freedom of exercise of religion. One can, instead, object that a law prohibits an exercise of religion that doesn't physically harm anyone, or some other such qualifier. Then an actual discussion regarding what should and should not be protected can take place, rather than simple repetition of overbroad generalities.

Second, no one has explained why anti-race or anti-sex discrimination laws do not impair the freedom of exercise of religion. One could, of course, claim, that it's just obvious that sexual orientation and race (or gender) are just different things. Or that, for that reason, anti-race and anti-sex discrimination laws should not exist.

If you think your little "child sacrifice" quip was a challenge, then I'm afraid that UCLA isn't doing you any favors.

I don't even know what that means.
10.24.2007 1:25am
Ramza:

A much closer question might be whether or not the harm caused by allowing an exception for hallucinogenic use based religious belief is outweighed by the deference we would give to religions.

You probably picked this example due to the recent supreme court case on the subject, but for anyone who doesn't know here is the court case.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
10.24.2007 1:55am
Dave Hardy (mail) (www):
It quoted Jefferson as stating that ""the legitimate powers of the government reach actions only, and not opinions."

Hmm.. Tinker v. Des Moines School District?

In any event, isn't it a little presumptuous of OMB to be recommending a veto of a bill that hasn't been voted on by either House yet?
10.24.2007 2:36am
Grover Gardner (mail):
"Why not just drop the charade and admit that the intent of these laws is to punish people for their religious beliefs?"

Because it might be more accurate to say that the intent of these laws is to keep people with certain religious beliefs from punishing those who don't agree with them.
10.24.2007 3:35am
Ryan Waxx (mail):

In any event, isn't it a little presumptuous of OMB to be recommending a veto of a bill that hasn't been voted on by either House yet?

Not if his goal is to affect the likelihood of its passing. Some congresscritters might think twice about a putting their name to a controversial measure if they judge it likely that it would fall to a veto anyway.

Don't tell me you just discovered this tactic now that a republican is in the WH ;)
10.24.2007 5:23am
Oh My Word:
This is the kind of thing that shows the huge problems with discrimination laws. Especially when you get to hostile work environment laws, they are so muddled and squirrely that they start to lack much guidance at all. For example, what if someone says that they will run a Christian business and that they will not permit someone on staff to engage in G/L activity. Is this against the law? Does this create a hostile work environment? What if someone hangs up an Exodus International poster in his office and passes out Exodus International material at work? Does that mean that the inevitable hostile work environment case passes summary judgment?

Surely someone should be able to run a Christian bookstore (or, for that matter, a Christian law practice or Muslim real estate company) and have standards of conduct as well as behavior for its employees, both on and off the job. If that person doesn't like it, that person can go find another job. To outlaw this is to violate the freedom of association.

The other problem here is the chilling effect that discrimination laws can have (both the pretext theories and the hostile work environment theories). Someone can easily hold the threat of a lawsuit--unstated threat of course--over a business's head and force that business to accede to the GLB agenda that society ratify G/L conduct as neutral with respect to heterosexual family structure. If someone who has traditional views of the family, even taking religious discipline out of it, that person is probably going to have to back down in the face of the fact that he can be sued and have to drag his business through the court to vindicate his name to the tune of $100,000 plus in litigation costs or be forced to pay a coercive settlement. It costs almost nothing to file a lawsuit, and I'll guarantee there are LAMDA/public interest outfits aplenty who would take the case on contingency or "pro bono."

When you get to something that is behavior and not just skin color, the already-difficult lines are totally washed away into a standardless inquiry, an effective offensive weapon against traditional religious beliefs outside the four walls of a religious institution, and a weapon to forge the path to the proposition that people cannot say that one lifestyle should be encouraged over another without being tagged as prejudiced and so forth.
10.24.2007 7:30am
markm (mail):
Let's compare orthodox Christianity to child sacrifice!

Christianity actually is founded upon a human sacrifice. Or have you forgotten what Easter is about?
10.24.2007 9:05am
Ramza:

force that business to accede to the GLB agenda that society ratify G/L conduct as neutral with respect to heterosexual family structure

the utter deprativity of such an agenda
10.24.2007 9:10am
Chris Bell (mail):
Oh My Word:

Don't forget people that want to set up Christian science departments.
10.24.2007 9:34am
Oh My Word:
The above comment was sarcastic and off-topic. The comment above that one was sarcastic and wrongly presumes that your opinion is so self-evidently right that it is not necessary to defend beyond sarcasm and to enforce with the government's police powers.
10.24.2007 9:42am
Ben P (mail):

Surely someone should be able to run a Christian bookstore (or, for that matter, a Christian law practice or Muslim real estate company) and have standards of conduct as well as behavior for its employees, both on and off the job. If that person doesn't like it, that person can go find another job. To outlaw this is to violate the freedom of association.


I understand your point that going beyond skin color creates great problems in determining the the proper standard, but this argument was just as easily used when people in the past wanted to do things like create "whites only" law practices.


In the past thread the question of gender differentiated dress codes was brought up and I thought that was an potentially interesting question. And it certainly could apply in the context of a christian bookstore, where the necessity to maintain a proper public appearance is related to it's business.

But in situations where it's not related to the business and having an X business means that one of your policies is "we discriminate against Y"

Let's go back to the hypothetical Muslim agency. Lets say they have an unspoken policy of only hiring Muslims. Freedom of association right? and one employee is hired and preforms adequately, but is then fired because it's discovered that he's a non-practicing muslim. He gets caught violating dietary laws one day. Can we really make the same argument where it's just minor behavior that's at stake?
10.24.2007 9:52am
Murmur:
For example, what if someone says that they will run a Christian business and that they will not permit someone on staff to engage in G/L activity.

Can you possibly give a rational reason why a company would do this aside from anti-gay bigotry? Why would someone put up an Exodus International poster if not to say "I don't like gays"?
10.24.2007 9:55am
Happyshooter:
All this will do is give gays 'for cause' employment enforced for free for the employee at state expense-- the same way that blacks and hispanics in Michigan now have the same coverage. In effect it will make them a better class of employee.

If you fire a visible minority in Michigan, about 20% of the time they fire a civil rights complaint with the state, who over the course of a year or two does a full investigation and determination.

That is why every minority firing has to be over documented, and why they get a break for some offenses that would result in a firing for whites or asians.
10.24.2007 9:57am
Wahoowa:
Being the major law nerd that I am (my favorite topics are standing and sovereign immunity), I have a minor quibble with the way you characterize the court's current sovereign immunity jurisprudence. I don't think anyone would argue that it's not "non-textual." But at least a few people would quibble with your assertion that it's ahistorical. See, e.g., Alden v. Maine, 527 U.S. 706.
10.24.2007 10:18am
Oh My Word:
Murmur, if someone believed that G/L conduct was immoral or unhealthy based on deference to a 2000-year religious teaching, that would be a reason aside from bigotry. There are, of course, many others. You may disagree with them, but everyone who disagrees with you is not some sort of bigot.

Ben, your hypothetical is why I think that anti-discrimination laws as applied to religion are also unconstitutional, or at least ill-advised. People should have the right to say, "I want to hire only people who adhere to certain moral standards." Whether or not that is based on religion, that should absolutely be a right. If that standard is irrational, then it may hurt their bottom line, but it should not be against the law to draw such lines just because one group that engages in a particular type of conduct is particularly well organized and politically connected.

If someone refuses to hire anyone who eats pork, that may be a little peculiar, but it's not against the law. If someone refuses to hire anyone who eats pork because that employer person is a Muslim, does that then mean he's committed a thought crime?

This is the kind of Alice in Wonderland stuff that David Bernstein has rightly criticized in his many critiques of hostile work environment and pretext claims in "You Can't Say That!" and associated work.
10.24.2007 10:22am
Murmur:
Murmur, if someone believed that G/L conduct was immoral or unhealthy based on deference to a 2000-year religious teaching, that would be a reason aside from bigotry.

Your perceptions are cloudy if you think this deference is rational and not merely convenient. You also ignored my question about Exodus International--what would be the point of putting up a poster in a workplace for such a group if not to communicate "I don't like gays"?
10.24.2007 10:36am
Oh My Word:
Regarding Exodus International, it is made up of G/L and post-G/L persons predominantly, so it does not seem credible to say that it is a bigoted organization. What if the person was a memeber of EI and who had SS attractions but believed that people should not act on them? That person was proud of being in EI and had something in his office about it? What if, after work, that person approached someone who was engaging in G/L sexual conduct and handed that person some literature?

Now, how would that be different from someone who is in AA and who has come to believe that any contact with alcohol is unhealthy and should be avoided. Now, I like a few drinks and think that avoiding all contact with alcohol, tea, and coffee is a little peculiar, but it's not irrational. Mormons have this belief, but I wouldn't accuse all Mormons of having that standard of conduct as a "merely convenient" dividing line for viewing non-Mormons who so indulge as heathen and worthy of dislike.

This kind of law is the absolute opposite of libertarianism at its core.
10.24.2007 10:50am
Oh My Word:
Also, regarding the dubious proposition that my perceptions are "cloudy," regarding deference to religious teachings, you're misunderstanding part of the point there. One of the points of a code of conduct that is deferred to with religious degree of reverence is because people can't come up with the right way to live and be in an ordered society on their own, definitely not as minors, almost certainly not as young adults, and unlikely even as older adults.

Rules would not be necessary if you just followed the ones you agreed with--if that were the standard, there would be no point to a rule. Most religious traditions have carefully worked out sets of conduct rules for just that reason--sometimes people have to do things they disagree with. It is at least rational, if not necessary, to adhere to some greater philosophy than "whatever my heart tells me to do." Such an approach to life, whether at age 15 or age 75, is not cloudy thinking.
10.24.2007 11:01am
ellisz (mail):
do states with laws like this bar discrimination based on 'perceived' sexual orientation?

I ask because this seems to be an invitation to endless litigation, esp since it does not appear that 'perceived sexual orientation' is defined in the bill.

Pl: "You perceived me as gay.'

Def: 'No I didn't.'

Pl: "OK, then I need to depose everyone in the office to smoke out the truth, and I also need to depose all your friends and family to see if you ever made any comment about me that suggests how you perceived me. . ."
10.24.2007 11:03am
Oh My Word:
Apparently, the final bill did not have "perceived" in it, but that is a red herring. Anyone who has done employment litigation or worked for a federal district court knows that even the slightest comment will be enough evidence to get to a jury at least (and thus force a settlement) based on existing case law for race/gender/national origin.

Such comments may not be "directly" unlawful, but they can be used to support an inference that the person harbors a "discriminatory" thought.
10.24.2007 11:21am
Cornellian (mail):
Murmur, if someone believed that G/L conduct was immoral or unhealthy based on deference to a 2000-year religious teaching, that would be a reason aside from bigotry. There are, of course, many others. You may disagree with them, but everyone who disagrees with you is not some sort of bigot.

And when that person entirely ignores any number of other "religious teachings" from the same source, even the same book within the same source (e.g. don't eat shrimp, death penalty for working on the sabbath etc.) it's entirely legitimate to wonder why his deference seems to be so selective. It's also legitimate to wonder why he extends this "religious teaching" from "G/L conduct is bad" to "I should fire anyone who I find out has engaged in G/L conduct" without doing so for, e.g. people who have extra marital affairs, people who get divorced, people who are atheists etc.
10.24.2007 11:23am
Cornellian (mail):
Apparently, the final bill did not have "perceived" in it, but that is a red herring. Anyone who has done employment litigation or worked for a federal district court knows that even the slightest comment will be enough evidence to get to a jury at least (and thus force a settlement) based on existing case law for race/gender/national origin.

You got any authority to cite for this "slightest comment" test?
10.24.2007 11:25am
frankcross (mail):
I don't practice and can't speak to settlement pressure, but I read a lot of cases. Those cases seem to indicate that the "slightest comment" issue getting to a jury is wrong. I see plenty kicked on motion to dismiss or summary judgment, when all the plaintiff has got is such a comment.
10.24.2007 11:32am
loki13 (mail):
But at least a few people would quibble with your assertion that it's ahistorical. See, e.g., Alden v. Maine, 527 U.S. 706.

W-

I too like me some sovereign immunity. We can agree that it has no basis on texturalism (either directly or structurally to the Art. III). As far as history... well, there's five people that agree with you. Per Brennan, that's enough.

I (and others) think its a misreading of the record to put teeth into the 10th. And when I want to get my submerged lands for my State gummint, I'll know who to blame.
10.24.2007 11:42am
Mike S.:
Cornellian,

So you think the law, or even polite society, should distinguish an Orthodox Jew who didn't eat pork, violate the Sabbath, eat produce grown in the seventh year, and obeyed the various other Biblical commandments, from a Christian who believed he did not have to do so after Jesus?
10.24.2007 11:45am
Waldensian (mail):

without doing so for, e.g. people who have extra marital affairs, people who get divorced, people who are atheists

Darn, now I'm worried about my job security. I've got the last two covered, and frankly I'm bitter that I missed out on the first.
10.24.2007 11:48am
Adam J:
Oh My Word- If you knew what you were talking about then you would know that there's no way a single comment will get past a summary judgment motion (at least under federal law- some states might be different).

Also, why is deference to a 2000-year religious teaching not bigotry? So if a person "defers" to his parents or friends that gays, women, jews, blacks, or any other group is "immoral or unhealthy" that doesn't make them any less a bigot. Please explain why Catholism get a pass.
10.24.2007 12:02pm
JosephSlater (mail):
As I've said before in threads about ENDA, listing parades of horribles that ENDA supposedly would cause doesn't mean much, because (according to scholarly estimates) about half the U.S. workforce is ALREADY covered by laws (state and local) barring discrimination on the basis of sexual orientation.

Thus, people making dire predictions about what will happen if something like ENDA passes should reasonably be asked to provide some evidence that anything like their dire predictions have occurred in the considerable number of jurisdictions in the U.S. that already have such laws.

I say this in every thread about ENDA, and I have yet to see any ENDA opponent point to any stats, studies, or other data based on actual experience with these laws. I wonder why that is.
10.24.2007 12:02pm
Adam J:
JosephSlater- You're forgetting that you're dealing with people who generally don't like to rely on "empirical evidence" and "facts".
10.24.2007 12:18pm
Oh My Word:
Joseph, the parade of horribles may indeed be the case in these jurisdictions. It's not a thing where you can read a list of things that happen, but what does not happen--people are surely deterred/prevented from being able to have a certain moral standard of conduct in their business because of the laws. There's no reason to believe that is not the case already. People just won't fight it. Now, one can say well maybe that's a good thing. Honestly, I agree in many ways. But it's highly un-libertarian and in effect forces others to accede to the GLB agenda in their own lives and work. Just because I think that people should leave sexual preferences out of the workplace does not mean I favor these thought, attitude, and speech regulations.

---

Regarding the "slightest comment" bit: I agree, in most circuits, such comments alone don't get past summary judgment, though in a lot of district courts, a stray comment accompanied by some other circumstantial evidence will certainly get you past summary judgment. It's impossible to cast a broad brush here, because it is largely up to the district court. If the district court denies summary judgment, the employer is going to settle 9 times out of 10. Why would someone pay $100,000+ to try the case and litigate it on appeal to get vindicated, esp. when the court of appeals very well may back up the district court on letting the case go to the jury? Many district court judges, of course, don't let those cases through. Beyond that, it's impossible to make a casual assessment given that the case law tests are so broad and courts apply them with such variation across so many fact patterns.

But the point that a stray comment can often be a tipping point from "those facts are suspicious" to let it go to a jury. As an example, if a boss says "I don't want you acting black in the workplace" or something is absolutely a major risk and will probably get you looking at the business end of a federal lawsuit if accompanied by some other evidence the plaintiff's attorney can drum up, maybe more blacks were fired than whites in the past five years or something.
10.24.2007 12:28pm
Oh My Word:
To give a concrete example, I have seen a case not only get past summary judgment but actually hang a jury on less than the above hypothetical in a Title VII case. It probably cost the employer $150,000 or more to try the case and then settle before risking another jury trial.
10.24.2007 12:32pm
Cornellian (mail):
Mike S,

I think a person carrying on a business should do so in compliance with the laws regulating that type of business, regardless of his or her religious beliefs.

As for the Christian in your example, polite society might wonder why he thinks Jesus "freed" him from all but one of the statements in Leviticus but we probably wouldn't ask, since it's not generally polite to question people about their religious beliefs, except in certain limited situations.
10.24.2007 12:35pm
Per Son:
"I have seen a case." That is enough for me! Down with ENDA!!!
10.24.2007 12:35pm
Adam J:
Since when did it become "un-libertarian" to protect a persons right to express his sexual orientation? This is a classic "what is a cost of what" case where you have to look at the costs of either choice. On one side, you take away a employers right to fire or discriminate based on one's sexual orientation (or "force them to accede to the GLB agenda" as you put it), on the other side you basically protect a homosexual's right to be homosexual by insuring that they can seek and keep employment where ever they choose (there are also transaction costs-legal fees and whatnot from enforcing this law).

Under your logic you can argue that all negligence law is "unlibertarian" because it forces people act "reasonably". However negligence law also protects all people from other person "unreasonable" actions.

Also, "I have seen a case" is not a "concrete" example. How about a cite, a case name, or an index #.
10.24.2007 12:50pm
Adam J:
Oh my word- it sounds like you have larger gripes with the jury system in general then with ENDA specifically.
10.24.2007 12:52pm
Hans Bader (mail):
Transgender rights provisions are a big headache for employers, leading to six-figure lawsuits over whether they have to led a transgendered person with male DNA use the ladies room. (The ladies say that creates a hostile work environment).

West Publishing Co. had to spend a fortune litigating such a case up through the Minnesota courts.

It won only because the law back then didn't cover transgendered plaintiffs, only gay people.

Now it covers transgendered plaintiffs as well.

And House leaders are indicating they'd like to keep the transgendered language in ENDA.
10.24.2007 1:29pm
Hans Bader (mail):
The West Publishing case I described above involved Minnesota's gay rights law.
10.24.2007 1:30pm
Hans Bader (mail):
ENDA only has a religious exemption for INSTITUTIONS, not INDIVIDUALS.

So an individual worker who advocates banning same-sex marriage in the workplace can be accused of "sexual orientation harassment" on that basis (since every other federal antidiscrimination law is already deemed to prevent harassment against protected classes, such as women (sexual harassment), racial minorities (racial harassment), and the disabled (disability-status harassment), including speech that creates a "hostile work environment" for members of such groups).

That does raise religious freedom concerns, since religious beliefs are undeniably limited by the hostile-environment cause of action. You can debate about whether such limits are a good or bad idea, or a permissible or impermissible restriction on speech, but those limits undeniably exist, and come at a certain cost to civil liberties.

Eugene Volokh of this web site is the most published scholar in this field and has a whole series of articles on how hostile-environment regulations lead to restrictions on core political and religious speech.

He thinks such restrictions are partially unconstitutional and partially constitutional.

First Amendment challenges to sexual harassment law have usually (although not always) failed -- not too surprising when you consider that the speech regulated by sexual harassment law usually isn't core political or religious speech (porn isn't exactly at the heart of the First Amendment).

By contrast, challenges to restrictions on religious speech have been a bit more successful. See, e.g., Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (ban on religious activities that create a hostile work environment must, under state constitution, exempt religious expression that the defendant did not KNOW was offensive to the complainant); Bryce v. Episcopal Church (10th Circuit) (dismissing lesbians' harassment claim against church for anti-lesbian remarks by ministers speaking for the church).

There is good reason for passing a law to give state and federal employees some protection against sexual-orientation-based discharge.

But ENDA inevitably goes a lot farther than just doing that.
10.24.2007 1:39pm
Wahoowa:
Cornellian:

Homosexuality is not mentioned ONLY in the Old Testament. It also comes up a number of times in the New. Therefore, a person could rationally hold that Jesus freed them from the entire old covenant but that not engaging in homosexual sex is part of the new covenant.

The whole "look at all the silly things in the OT that you don't follow" line comes up all the time whenever people discuss religious opposition to homosexuality, but it's a red herring. Regardless of your stance on the issue, people should at least be intellectually honest. Perhaps I'm in the minority, but I come here to get rational analysis. If I wanted rhetoric, obsfucation, and selective presentation of the facts I would go to Redstate or DKos.
10.24.2007 1:39pm
Chairm:
A. Carpenter said,

Litigation arising from imprecise terms. "Perceived" sexual orientation, as used in ENDA Sec. 4(a)(1), does not seem especially imprecise to me, especially given that "sexual orientation" itself is given a narrow definition in ENDA Sec. 3(a)(9).


Is this the "narrow" definition?

(9) SEXUAL ORIENTATION.—The term "sexual 21
orientation" means homosexuality, heterosexuality, or bisexuality.


Is that based on well-established and precise definitions of homosexuality, heterosexuality, and bisexuality?

From the OMB:
The bill turns on imprecise and subjective terms that would make interpretation, compliance, and enforcement extremely difficult. For instance, the bill establishes liability for acting on "perceived" sexual orientation, or "association" with individuals of a particular sexual orientation. If passed, H.R. 3685 is virtually certain to encourage burdensome litigation beyond the cases that the bill is intended to reach.


Note:

1. "turns on imprecise and subjective terms"

2. burdensome litigation beyond the cases that the bill is intended to reach

B. Carpenter said,
"Association," used in Sec. 4(e), likewise has meaning in federal statutory and constitutional law and the OMB does not explain why it is too vague here. There will be litigation around the edges of this law, as there always is, but the use of similar terms in the Americans with Disabilities Act has not produced voluminous litigation.


Is not "association" less precise and less well-established in terms of "sexual orientation" than in terms of disabilities? That is, point B depends on point A, and thus Carpenter's opinion depends utterly on his disagreement with the OMB that the terms used are imprecise and subjective.

Seems that it is this disagreement that cannot be airily dismissed as "transparently thin" the way that Carpenter has attempted to do in his blogpost.

While we are at it, perhaps Carpenter can provide his his intended meaning when he used the phrase "religious conservatives". Precision, Mr. Carpenter, precision and less subjectivity, on this point.
10.24.2007 1:40pm
JosephSlater (mail):
Oh My Word:

People who assert a certain legal rule THAT IS ALREADY WIDELY IN EFFECT will have specific bad consequences should bear the burden to show that this rule already has had those consequences. If this wasn't sufficiently clear from my earlier post, the absence of any such evidence in fact points to the opposite conclusion: that the dire predictions are in fact inaccurate. And respectfully, your take on one un-named Title VII case that survived summary judgment is not much by way of evidence.

Adam J.:

I would prefer to assume that many people don't know how widespread state and local laws that bar discrimination on the basis of sexual orientation already are.
10.24.2007 1:53pm
Hans Bader (mail):
It's worth noting that discrimination against gays is already more likely to be against the law that discrimination against white men. So much for the theory that gay people are all victims of society.

The 20 or so states that have gay rights laws include most of the most populous states (New York, California, etc.), and most of the biggest cities.

Most gay people in America already work in a gay-rights jurisdiction.

By contrast, under the Supreme Court's Weber and Johnson decisions, hiring discrimination against white men is often legal, and even when it isn't, the boundaries are so unclear that lawyers won't often won't take the case of a white male denied a job even if the denial wasn't pursuant to a valid affirmative action plan.

The cases litigated under existing gay-rights laws have basically involved only 3 really problematic areas: (1) costly lawsuits based on transsexuals, in those states that include transsexuals along with gays as a protected class (not all gay rights statutes do), such as lawsuits by transgendered people with male DNA seeking to use the ladies room over women's objections; (2) decisions like the New York Court of Appeals that allow religious universities and landlords to be sued for not treating cohabiting gay couples as if they were married, (e.g., under the theory that restricting certain housing units to married couples is disparate-impact discrimination against gays since gays can't marry); and (3) lawsuits alleging speech by social conservatives in the workplace creates a "hostile environment" for gays (like a complaint in Seattle over the playing of the radio, over which a conservative radio talk show host could be heard talking about gay rights issues).

The ban on discharge based on sexual orientation, by contrast, has not proven problematic.

There aren't very many private employers dumb enough to fire a qualified employee based on sexual orientation, anyway. Employers care about qualifications, not sexual orientation.

A narrower bill than ENDA, preventing state and federal agencies from firing people based on sexual orientation, would nonetheless be a good idea. But ENDA goes beyond that.
10.24.2007 2:06pm
ellisz (mail):
JSlater, do you know if the state laws you mention bar disc based on perceived orientation?
10.24.2007 2:14pm
Bpbatista (mail):
ENDA should be called "The Trial Lawyers Full Employment Act."
10.24.2007 2:20pm
Chairm:
JosephSlater said,
(according to scholarly estimates) half the U.S. workforce is ALREADY covered by laws (state and local) barring discrimination on the basis of sexual orientation


Could you please provide a citation or a link to your source?

How many years has half the workforce been covered by these laws? Which jurisdiction has the longest record with its sexual orientation provisions?

And is there a high degree of uniformatity in the laws across these localized (state and local) jurisdictions AND with the proposed new federal law?

You have strongly suggested that there are undisputed facts that are being ignored in this discussion. It is on such claimed facts that you offer your own speculation about the future consequences of ENDA.

The basis for your specualtion may be sound, even if your opinion might be challenged for other reasons, however, you have now taken upon yourself the burden of establishing the context and the qualification of the basis for your own pro-ENDA specualation.
10.24.2007 2:21pm
Ken Arromdee:
As for the Christian in your example, polite society might wonder why he thinks Jesus "freed" him from all but one of the statements in Leviticus but we probably wouldn't ask, since it's not generally polite to question people about their religious beliefs, except in certain limited situations.

I'd imagine that he believes this because the teachings of his religion are that Jesus did one and not the other. If you're trying to imply that he has personally decided to pick and choose from the Bible, you're almost certainly wrong; the religion did it for him, and he's just taking what he's been provided with.
10.24.2007 2:30pm
Adam J:
Hans- "So much for the theory that gay people are all victims of society." -A) I've never heard this theory, and B)simply showing that there are legal protections doesn't insure that someone not a victim of prejudice.

Also- "Most gay people in America already work in a gay-rights jurisdiction." and "There aren't very many private employers dumb enough to fire a qualified employee based on sexual orientation, anyway. Employers care about qualifications, not sexual orientation." What's you're point? That most gays are already protected or don't need to be protected so therefore the rest shouldn't have to be? So apparently it's okay to have people unprotected from bad acts... so long as a majority of the citizens are in states that are protected and most people don't commit the bad act.
10.24.2007 2:32pm
Ramza:

Homosexuality is not mentioned ONLY in the Old Testament. It also comes up a number of times in the New. Therefore, a person could rationally hold that Jesus freed them from the entire old covenant but that not engaging in homosexual sex is part of the new covenant.

The whole "look at all the silly things in the OT that you don't follow" line comes up all the time whenever people discuss religious opposition to homosexuality, but it's a red herring. Regardless of your stance on the issue, people should at least be intellectually honest. Perhaps I'm in the minority, but I come here to get rational analysis. If I wanted rhetoric, obsfucation, and selective presentation of the facts I would go to Redstate or DKos.
And there are a whole host of problems with the cases in the New Testament.
1 Corinthians 6:9, 1 Timothy 1:9-10 are the big Paul condemnations of homosexuality. Problem is the words Paul uses malakoi and arsenokoitai, one of them he made up and was never used before the root words he used are unclear to the meaning and thus arsenokoitai has been translated from masturbators to gay relationships. Malakoi is such a broad word and can mean effemininate, soft, male prositute, boy prositute (pre pubscent), and pederasts.
Jude 1:7 claims Sodom and gomorrha is going after strange flesh. Thing is Jude also quotes the book of enoch an apocryphal book which says when human and angel mate they create a new race of giants which are 7 miles tall. Furthermore the catholic and luther considered not including Jude in the canon because of this. Google the book of enoch to see what other nonsense this book had.
Finally there are all forms of quotes from Jesus in Matthew and similar books. On one hand Jesus healed the Roman Centurian pedastriac boy lover (Matthew 8:5-13). On the other hand he said marriage is between man and women. On another he said that some men shouldn't marry for they make "eunuchs of themselves" (which can be interperted as priests and/or gay men)

The case for the new testatment condemnation of homosexuality is extremly not clear and far less clear than the old testament. For a good balanced presentation of both sides of the arguement go to this site.

Religous Tolerance

------------------------

People aren't honest in debate when it comes to religon, they accept there version of the fact almost without reservation, not accepting amiguity of the text for in their mind there is no ambiguity there faith has shown them what is lies and what is not.

Or they don't even educate themselves in the first place, just repeating what there mom, dad, grandparents, pastor, and enviroment taught htem.
10.24.2007 2:42pm
Oh My Word:
"People who assert a certain legal rule THAT IS ALREADY WIDELY IN EFFECT will have specific bad consequences should bear the burden to show that this rule already has had those consequences. If this wasn't sufficiently clear from my earlier post, the absence of any such evidence in fact points to the opposite conclusion: that the dire predictions are in fact inaccurate. And respectfully, your take on one un-named Title VII case that survived summary judgment is not much by way of evidence."

Respect includes not using capitalized shouting when I have tried to answer the point. There are about four commentators in favor of these laws putting comments to me, so it's understandably tough to provide documentation of everything to everyone's satisfaction.

Regarding the laws already on the books, here is some evidence. 50 years ago it would have been almost unquestionably acceptable for an employer to fire someone who was living an openly G/L lifestyle or to insist plainly on a Christian standard of conduct in the business. Today, the former is against the law and the latter is a scarce bird. Anti-discrimination laws have been part of this cultural, as well as legal, shift. To some, this shift is good. To others, this shift is bad. But regardless, the shift in attitudes and the law has plainly occurred.

Regarding an example of absurd discrimination lawsuits, here are a few quick examples just from using Google and so forth:

http://www.techcentralstation.com/102203D.html (Scroll down to the example of Allen Fruge)

http://www.catostore.org/pdfs/Intro.pdf (Scroll down to the absurd lawsuit of Delores Stanley)

I am guessing that you agree with me that the above fact pattern I suggested is a serious legal risk?

Also, whether or not a case gets past summary judgment is more about whether the employer is going to have to fork over $30,000 in settlement up front or $60,000 in settlement, give or take. A few stray comments that cross the line of appropriate are going to be enough in just about any circuit for a good lawyer to draft a complaint with the requisite "upon information and belief, this attitude caused X adverse action and reflected a pattern of hostility and what have you." It is going to cost $50,000 to $100,000 just to win summary judgment, and that doesn't even begin to account for the severe cost to employee morale, time, and energy when half a dozen employees get deposed and have to answer all manner of interrogatories that make the company sound like a terrible, discriminatory place.

Beyond that, I could point to citations of some cases I saw while a law clerk, but I think that would be inappropriate. If you ever worked for federal court, I'm sure you know what I mean--lawsuits that are almost certainly absurd and should not be in court, but skirt through well enough to force a hefty settlement. Bernstein's research (and of course there is more where that came from) shows the point well enough for cases that went to a jury, which of course is even more costly in dough and reputation.
10.24.2007 3:00pm
Randy R. (mail):
There are currenlty 20 states that have a form of ENDA that protects gay employees, and most of them have been around for several years. There are five states that currently have bills similar to ENDA, and there are indications that they will pass in those five states Therefore, soon half of all the states will have a form of ENDA.

As with any law, you can always find abuses and silly outcomes. The question is whether there is any evidence of systemic abuse or contorted outcomes. There is none. If there is any, then you have to show it, not just speculate about it.

As for the Bible and homosexuality, any scholar will tell you that there simply was no concept of homosexuality until the late 19th century when the word was first coined, and there have been plenty of biblical scholars who have said that the NT says nothing at all about gays, and certainly many people of good faith, such as Bishop Spong, agree. There are plenty of links and so it need not be discussed here.

But the larger point is that I really don't care what any religion thinks of me as a gay man And it certainly should not be a consideration of my employment. Why anyone would think otherwise is way beyond me. A true conservative and liberatarian would only be concerned about having the best employees on the job and would not care who I sleep with. Moralists and Christianists do. But then, they shouldn't be running a business.
10.24.2007 3:22pm
Adam J:
Oh My Word- I certainly agree that from the facts presented in those circumstances, there did not appear to have been a legitimate claim. Similarly, I'm sure there are plenty of lawsuits that are settled even though not legitimate. However, showing that the system was flawed in a particular instance however isn't enough to make your case. For example- we don't stop putting convicted persons in prison simply because we've found that some of those convicted are innocent.

Also, you never answered my earlier question;
Why is deference to a 2000-year religious teaching that "homosexuality is immoral or unhealthy" not bigotry? So if a person "defers" to his parents or friends that gays, women, jews, blacks, or any other group is "immoral or unhealthy" that doesn't make them any less a bigot. Please explain why Catholism get a pass.
10.24.2007 3:37pm
Wahoowa:
Ramza &Randy R.:

Understood, and I take no position on the issue. I was merely stating that it is not necessarily irrational or contradictory to say both "Jesus freed me from the old law/OT" and "Homosexuality is sinful." You seem to be addressing whether saying such a thing is correct. It's a perfectly fine argument to have, but that's not really what I was talking about.
10.24.2007 4:02pm
Jon Rowe (mail) (www):
As for the Bible and homosexuality, any scholar will tell you that there simply was no concept of homosexuality until the late 19th century when the word was first coined, and there have been plenty of biblical scholars who have said that the NT says nothing at all about gays, and certainly many people of good faith, such as Bishop Spong, agree. There are plenty of links and so it need not be discussed here.

Well I think they knew homosexual acts occur, because the Bible specifically prohibits them. Antigays would argue -- the orientation, which few or no one was aware of until recently -- is irrelevant.

I'd also disagree that "no one" knew of the concept of "the homosexual" until recently. A more accurate assertion was "few" understood the concept.

If you want a source from antiquity which clearly understands the concept of "the homosexual," look no further than Plato's Symposium and his (or Aristophane's) metaphor for Eros.
10.24.2007 4:04pm
Ramza:

Ramza &Randy R.:

Understood, and I take no position on the issue. I was merely stating that it is not necessarily irrational or contradictory to say both "Jesus freed me from the old law/OT" and "Homosexuality is sinful." You seem to be addressing whether saying such a thing is correct. It's a perfectly fine argument to have, but that's not really what I was talking about.

Understand, I am just pointing out the evidence on both sides, and how it muddies the issue, there is no good evidence on either side of the debate. Yet people still as you say don't give rational analysis, rhetoric, and selective presentation of facts. I would argue that applies both to the Christian Liberalists as well as the Christian Conseratives (liberal and conserative in interperation of the text not in political viewpoint).
10.24.2007 4:07pm
Oh My Word:
"The question is whether there is any evidence of systemic abuse or contorted outcomes. There is none. If there is any, then you have to show it, not just speculate about it."

We are just blog commentators sneaking a comment during work, not academics who can research this. That being said, I am not alleging systemic abuse in some sort of grand scheme. I am arguing that (1) it is certainly plausible and easily conceived that people will use these laws to their political and tactical advantage irregardless of whether actual discrimination exists, and (2) there are easily found examples of situations in which such frivolous lawsuits have been filed and proven absurdly costly.

---

Adam J: That is not an easily answered question, and I am sure you know the long answer to it. There must be a balance between deference to authority and "do what your heart tells you" or "do what feels right." Everyone draws that line in a different place, and it is the height of presumptuousness to say that you or anyone else knows conclusively where that line should be drawn. Hence why we have liberty. My point was only, and I repeat only, that it is reasonable to include in one's life deference to a religion with a very long pedigree. I would neither advocate blind obedience nor making all rules just suggestions to take or leave--then there would be no point in social rules, whether they be GLB friendly, Jewish rules, hippie rules, or whatever.

I would not defend deferring to one's friends. One's friends are not a sufficiently strong source of wisdom to be owed much deference. Parents are a different matter, and I think that they are owed a lot of deference, even when you vociferously disagree (as we all have). Sometimes parents are wrong, yes. But from that fact it does not follow that you just take a buffet approach to them, esp. when growing up. That is one reason also why we have religion--where parents fall short, our religion helps pick up the slack. Christianity, for ex., was path-breaking it its attack on racism. So, just to give you a thumbnail answer, if your parents are racists but they were at least smart enough to get you to church and that your first obligation is to God, well, you're on sound footing within your tradition to say you'll throw out their racism in favor of the New Testament's embrace of all peoples.

I am sure you can poke holes in this and provide counterexamples--sure, I can too, this is just a short blog post. But it's important to understand the original point I was making. I.e., "just follow your heart/inner god" is a problematic way, personally and society-wide--or actually even more limited of a point: it is reasonable to draw from a source of wisdom found in a tradition, body of thought, or religion.
10.24.2007 4:13pm
Oh My Word:
Just one more note: Regarding SS orientation, the proposition that this was not known until the 19th century has little basis. In addition to the Plato discussion, St. Paul in his writings refers not just to SS conduct but also to men for whom that is their preference/orientation. Men in ancient Mediterranean armies were often encouraged to develop SS relationships on the campaign, and that was quite the norm. Undoubtedly such relationships continued in the baths back home or at the outpost in long-term fashion--or, at least, there's plenty of anecdotal evidence in favor of that and none I know of against it. Also the Isle of Lesbos story--the idea must have come from somewhere. In ancient India too we have plenty of writings regarding extended SS relationships and orientation. The ancients were not the clueless primitives they are conveniently made out to be in these debates.
10.24.2007 4:33pm
JosephSlater (mail):
Hans Bader:

It has long been illegal to discriminate against whites and men under Title VII and similar state and local anti-discrimination laws. Men and whites have brought successful discrimination claims, as you should know.

ellisz:

I don't know. For those who think this is a major sticking point, it would be fairly easy to check.

Ramza:

I apologize for the capitalization/shouting, but again respectfully, you have not provided what could be called convincing evidence of the parade of horribles. You've given a couple of anecdotes, and frankly, the characterization/description of the "Seinfeld case" in that blog is pretty one-sided/misleading. Even if the descriptions in the two cases you cite were accurate, that's just anecdotal and could be rebutted by me telling you of a couple of cases in which employers unfairly fired employers because they were gay/lesbian.

You may not have the time and interest in researching this issue further. But the point of me stressing, by capitalization or otherwise, the fact that we have a lot of experience in these laws is that folks making certain claims need to back up those claims by more than a story or two.

Of course, on the level of "if you create a legal right for employees, some weak claims will get through the system and cost some employers some money," then sure, that's right. But that's an argument against anybody having any legal right. It's an argument against employment at will that sometimes employers fire for stupid, irrational, socially harmful reasons.

Moreover, employment discrimination plaintiffs do worse at every level of litigation than plaintiffs in pretty much every type of civil litigation (cites available on request). So even granting that being sued is still a hassle even if you win, there's little evidence that these laws are putting plaintiffs in such a strong position.

Bpbatista:

The lawyers' full employment act? What with only about 5% of the population gay/lesbian, and (presumably) most employers not engaging in irrational discrimination? Do you foresee people pretending they are gay and suing their employers? To get back to my original point, has that happened in the many jurisdictions that have state/local laws that protect gays and lesbians?

Chairm:

I'm relying on work done by Prof. Steve Clark at Albany. He's posted in VC threads before. Gay/Lesbian advocacy groups (and their websites) also keep track of state and local laws. I could try to track down cites for you if you want, but there's no dispute that these state and local laws exist, and the types of questions you ask could easily be researched by anyone interested. Again, my only point is that people making predictions about dire effects of these laws should test them against reality. I haven't made any such predictions. I'm just noting the reality others might want to check.
10.24.2007 4:42pm
Hans Bader (mail):
Talk about carrying coals to Newcastle.

I pointed out the undeniable fact that under the Supreme Court's decision in Weber (1979) and Johnson (1987), discrimination in hiring against white males is often legal. Often, that is, not always. If the employer's workforce is mathematically "balanced" between whites and non-whites, then its discrimination against white males is not shielded from challenge under the Weber and Johnson decisions. But many discriminatory hiring decisions are shielded by those decisions.

In response, Joseph Slater, without so much as acknowledging those court decisions, lectures me that

"It has long been illegal to discriminate against whites and men under Title VII and similar state and local anti-discrimination laws. Men and whites have brought successful discrimination claims, as you should know."

Well, guess what? I've brought such claims as a lawyer, as he could tell from running a search of me on Westlaw.

I also am familiar with the few states that provide more protection against reverse discrimination than federal law, since I worked on the landmark case that upheld a state law that did just that, over the objections of the Clinton Justice Department and the entire "civil-rights" lobby, which insisted that it violated "equal protection" and Title VII for California to treat white males equally by protecting them against discrimination more broadly than existing federal law does. Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (upholding California's Proposition 209, also known as CCRI).

Sure, if you have a million dollars, you may be able to successfully challenge in federal court an employer's decision not to hire a white male by proving that its affirmative action plan is excessive or unnecessary. (That, by the way, is what it can easily cost to challenge a racial quota).

Otherwise, though, you have no redress. Most people don't have that kind of money.

And few law firms are willing to bet their fortunes on successfully challenging a racial quota, given the possibility that the challenge will lose, and that they'll recover no attorneys fees. (See the Supreme Court's decisions in the Paradise case (upholding a racial quota under a remedy-past-discrimination rationale) and the Grutter case (upholding very large racial preferences in admissions under a "diversity" rationale, even though the admissions system discriminated against both whites and Asians as an undifferentiated mass)).
10.24.2007 5:16pm
JosephSlater (mail):
Hans: you may need no lectures from me, but I need none from you, having both taught and practiced in this area myself.

Whites and men win race and sex discrimination claims, and not just in affirmative action suits. Do you have any evidence that their success rates in such suits -- and again, I'm happy to exclude suits challenging affirmative action suits -- are lower than, say, the success rates of black women bringing race or sex discrimination suits?

And let's not forget your original quote, to which I was responding. You wrote:

It's worth noting that discrimination against gays is already more likely to be against the law that discrimination against white men.

As I pointed out, that is simply untrue. As you know or should know, Title VII long has made discrimination against whites and discrimination against men illegal, and again, such suits are brought successfully, and not just in the affirmative action context.
10.24.2007 5:36pm
Hans Bader (mail):
My central point is that it's typically so uneconomical to bring a discrimination case on behalf of a white male that they aren't brought very often to begin with, even if discrimination factually did occur.

The fact that a few such suits are brought successfully (such as where an employer flagrantly flouts the law by blatantly refusing to hire white males even where its work force already consists predominantly of minorities) doesn't rebut that.

Yes, if such suits are actually are brought at all, they may prove successful. But few are brought to begin with owing to the need (in most cases) to not only prove, factually, that the plaintiff was discriminated against (as is true in any discrimination case), but also to meet additional burdens not found in other discrimination cases, such as rebutting the legion of mixed legal-and-factual rationales that are unique to cases brought by whites or males, and that will inevitably be used by the defendant to rationalize its discrimination even if proven (a remedial rationale if the defendant's workforce is supposedly imbalanced; or a diversity rationale even if it isn't; or an "operational necessity" rationale if that fails; etc, etc.), which may require the plaintiff to hire statisticians, expert witnesses, and the like, who cost even more than lawyers.

Thus, a lawyer is unlikely to bring a "reverse discrimination" claim to begin with, unless the case has some chance of prevailing even under the unlevel playing field that the Weber and Johnson cases mandate for such cases. So even if such cases, if brought, sometimes prevailed, that would not mean there was much of a remedy against "reverse" discrimination. It would just mean that lawyers were smart enough to avoid playing with a deck stacked against them unless unusual circumstances made success possible.
10.24.2007 5:58pm
Randy R. (mail):
" I was merely stating that it is not necessarily irrational or contradictory to say both "Jesus freed me from the old law/OT" and "Homosexuality is sinful."

Thanks for clarifying.

As for systemic abuse, of course we are just bloggers. But the professionals opposing ENDA havent' come up with any sorts of widespread abuse either. And yes, there is always abuse with any sort of legislation. Name any one of the first 8 constitutional amendments, and you will find abuse by plaintiffs or defendants. That is hardly an argument to get rid of them, however.

As for the lawyers full employment issue, I really don't get that one. You see, opponents of gay rights routinely say that gays only constitute a tiney percentage of the population, like about 1%. Either they have to concede that there are a lot more gays than they are willing to admit, or they have to give up the argument that gays control our society and are so powerful we can push through anything we want on the public, and that ENDA will result in clogged courts. But of course, they would require a modicum of rationality, which anti-gay activists are lacking.

Finally, regarding same sex orientation, it is true that many people in the past realized that there are some people who are primarily attracted to those of the same sex. But it wasn't recognized in a clincial sense, and with the knowledge that some people are born that way and that it doesn't change.

One more thought -- We gays have made a strong showing. ENDA is supported by about 70% of the population. Furthermore, no one has argued that employers should be able to fire gays outright. That is quite an advancement over even just a few years ago. That trend will only continue
10.24.2007 6:09pm
JosephSlater (mail):
Hans: Your original "point" was to claim that it wasn't illegal to discriminate against white men, or at least not as frequently as to discriminate against gays. That point is obviously wrong.

Your second point was to discuss solely challenges to affirmative action plans. Of course, some have been successful, but you minimize even that because you claim suits are too expensive to bring.

You now admit that more garden-variety sex and race discrimination claims are brought by whites and men, and some are successful, but that there are special obstacles, specifically that such plaintiffs must "rebut[] the legion of mixed legal-and-factual rationales that are unique to cases brought by whites or males."

I'm only aware of one such rule in individual cases-- the presumption some, but not all courts use, that white men usually don't discriminate against other white men. The doctrines you list apply to affirmative action cases. I'll happily acknowledge that the rules for whites and blacks are slightly different in affirmative action cases if you'll acknowledge a history of racial discrimination in employment by whites against blacks.

And do you, in fact, know the stats involving employment discrimination claims not involving affirmative action showing how often whites and men win as opposed to blacks and women? Hint: look at age discrimination claims.

In any case, however, we've come a long way from your original statement that discrimination against gays is already more likely to be against the law that discrimination against white men.

This is a long way from the original topic, so I'll leave it as that.
10.24.2007 6:09pm
Ramza:
Re: JosephSlater

I believe your comment that was addressed to me, was meant to be addressed to Oh My Word, not to me Ramza, am I correct?
10.24.2007 6:22pm
Hans Bader (mail):
The Supreme Court's rulings in Weber and Johnson expressly make clear that, just as I said, it is not as often against the law to discriminate against white males as it is to discriminate against other groups.

Private sector affirmative-action under Johnson and Weber doesn't require any showing of "history of racial discrimination." It just requires a sufficient "imbalance" in the employer's workforce.

And public sector discrimination, such as in college admissions, is permitted based on a variety of rationales, such as "diversity."

And there are additional rationales for discrimination against whites and males accepted by the courts: operational necessity (accepted by the Seventh Circuit, which noted that that was permitted even though it itself recognized that that was literally discrimination) and "diversity."

By contrast, the vast majority of gay people work in either a state, or a city or a county, with a gay-rights ordinance barring discrimination against sexual orientation.

The courts do not allow these state and local gay-rights provisions to be circumvented through appeals to "diversity" or "operational necessity" or the other rationales courts use to exempt discrimination against white males from protection under laws against discrimination. They apply them as written.

When I worked at a nonprofit law firm, I was in a better position to provide referrals to the gay people who contacted me seeking legal assistance than I was the white males who contacted me seeking legal assistance. (I am speaking here of assistance in suing private employers; my own employer at that time sued only governmental entities, not private employers, and brought some reverse discrimination claims against government entities). State or local civil rights agencies were usually sympathetic.

A sexual-orientation discrimination claim against a private employer is simpler than a "reverse" discrimination claim against such an employer. You get a more sympathetic response from the courts, which don't seek to evade the language of the relevant statute prohibiting discrimination, but rather apply its terms fairly.
10.24.2007 6:25pm
JosephSlater (mail):
Ramza:

You are correct, my mistake -- apologies.
10.24.2007 6:57pm
Chairm:
JosephSlater said:

there's no dispute that these state and local laws exist


Yes, but the comparison across jurisdictions and with ENDA are at issue.

JosephSlater said:

people making predictions about dire effects of these laws should test them against reality. I haven't made any such predictions.


I thought you had predicted the opposite, based on laws in local and state jurisidctions. Perhaps I misread the following:

JosephSlater earlier said:

the absence of any such evidence in fact points to the opposite conclusion: that the dire predictions are in fact inaccurate.


If I misread, please clarify.

It was on this basis that I thought you had speculated that ENDA would not have the consequences that concern its critics.

If a comparison with local and state laws is at issue, and you have said that it is, then, it seems to me, the pro-ENDA folks carry the burden of establishing the context and the qualification of the basis for their favorable speculation about ENDA.

Such a comparison is what I think your original comment was seeking, right? It would help clarify what the disagreement is about among the lawmakers -- pro and con.
10.24.2007 7:49pm
Chairm:
JosephSlater, thanks you for mentioning your source.

That work of Prof. Steve Clark at Albany is not sufficient, I think, in terms of the comparison between local/state and ENDA. Perhaps he is doing more or perhaps others have taken it up.
10.24.2007 7:54pm
Jon Rowe (mail) (www):
The Supreme Court's rulings in Weber and Johnson expressly make clear that, just as I said, it is not as often against the law to discriminate against white males

But still in principle being white or male is protected under the categories of "race" and "gender." Also, with recent Supreme Court decisions striking down AA programs, are those cases still good law?
10.25.2007 12:09am
David M. Nieporent (www):
By contrast, challenges to restrictions on religious speech have been a bit more successful. [...] Bryce v. Episcopal Church (10th Circuit) (dismissing lesbians' harassment claim against church for anti-lesbian remarks by ministers speaking for the church).
Wow; I wasn't aware of this one until now, so I went and checked it out. What a frivolous lawsuit. I can't believe they actually appealed it. (Well, I can. The wonders of one-way fee-shifting.)
10.25.2007 7:41am
JosephSlater (mail):
Chairm:

You make a fair point re my line about what one could construe the absence of evidence to show. I should have said something like, "the inability of those who make dire predictions to support those claims with evidence is telling." Personally, I do indeed suspect that most to all of the horribles trotted out haven't happened because I haven't heard of them. That's not scientific, but again, I'm not the one making predictions.

I'm also not sure why I have a burden to compare the provisions of ENDA line-by-line with state laws. Most state laws basically add "sexual orientation" to existing anti-discrimination laws. If somebody wants to argue there is some unique provision of ENDA that will make its application signficantly worse, again I would suggest the burden is on the person making that argument to point out the provision and explain why it will have the bad effect.

Finally, I was citing Clark's work for the point that a large percentage of the U.S. workforce is already covered by employment discrimination laws that include sexual orientation as a protected category. I don't think most people are actually aware of that fact.
10.25.2007 10:57am
Zoe E Brain (mail) (www):
I've posted here before on similar issues, and so it should be clear that I'm Intersexed, and thus Transgendered by US definitions.

Some facts, from surveys in CA and DC:
Only 25% of transgendered people are in fulltime work.
The average income of transgendered people is $15,000
30% of transgendered people have incomes less than $10,000

Some more facts: It was held by the 4th Circuit in Ettsity vs Utah Transit Authority that
1. Transgendered people are not protected by Title VII
2. That because congress had considered and not passed legislation protecting gays, "sex" in Title VII should be construed narrowly as only applying to men and women, not gays, lesbians or transgendered people.
3. That Price Waterhouse did not apply to transgendered people, as their appearance was so far outside the expected norm

Some more facts, that might be related to the above:
31% of Transgendered people suicide (California survey)
50% of Transgendered people self-harm before age 20 (Scottish Office survey, and the only one I consider reliable past +/- 25%)

Wisconsin has had Gay-ENDA since 1985. There is no prospect of getting T added in the foreseeable future, with zero progress having been made in 22 years.

Massachussets has had a Gay-ENDA for almost as long. Again there has been no progress whatsoever in getting T added.

New York in 2002 passed the SONDA, Gay-ENDA equivalent, after Ts were deleted at the last minute to get the bill passed that year. The T-inclusive bill has yet to attract a sponsor, and the efforts of GLB groups are now devoted to same-sex marriage.

Two weeks before the last-minute deletion of Ts from ENDA, the chair of the HRC promised that in view of what happened in NY, Transgendered people would never be left behind again, and that the HRC would actively oppose any legislation that excluded them.

HRC is now actively supporting the Gay-only ENDA, the only GLBT group so to do.

Wisconsin, the first state to pass a Gay-ENDA, recently passed legislation specifically banning medical treatment for transgendered prisoners that ameliorates their condition.

The state's expert witness on medical treatment for transgendered people was Mr (not Dr) Daniel Claiborn.
Under cross-examination, Claiborn said he has never researched gender identity disorder and doesn't receive journals on it. Several medical books list it as a mental disorder, but he said that as a psychologist, he doesn't find them useful because they are too medical in nature.
Remember, this is in a state that is "Gay Friendly", and has been for longer than any other.

Given the amount of bigotry at all levels, not least amongst many Gays, and given the record showing only 4 of the states that passed Gay-ENDAs ever added Ts to the list, the case for removing protection for transgendered people is not as clear-cut as it might seem. There is a probability that once removed, they will never be added in the foreseeable future.

Chris Crain's views have been quoted with some approval on the subject.

Here is what he replied to me, when I asked if it was his intention to "come back later" after a Gay-ENDA was passed.
I also don't buy into the notion that we owe it to you to work as hard for trans-ENDA as our own. Where the hell does that come from?
10.25.2007 11:01am
Randy R. (mail):
"If a comparison with local and state laws is at issue, and you have said that it is, then, it seems to me, the pro-ENDA folks carry the burden of establishing the context and the qualification of the basis for their favorable speculation about ENDA. "

Well, we can argue about whose burden is what, but the fact remains that currently 20 states have laws that prohibit discrimination based on sexual orientation, and bills are pending in five more, which are likely to pass.

We have stated it before numerous times, but apparently, some people don't get it -- if there were any serious problems of whatever nature with these bills, opponents would have dragged them up by now. Their silence is telling. Therefore, it's up to commentators on Fox News to merely speculate what might happen.

Well, they don't have to speculate. After 20 states, the verdict is in -- there is no major problems with ENDA. There is not an explosion of lawsuits, frivolous or otherwise, white men are still being hired for plenty of positions, gays are still being hired, there is no infringement upon religious institutions' desire to demonize or hate gays, and the economy is rolling along.
10.25.2007 11:25am
Zoe E Brain (mail) (www):
As for the Hate Crime Legislation:

<blockquote>The police weren't going to investigate, calling it a "domestic dispute". Until a witness provided a videodisc of the whole thing.

It happens (just over) a fortnight ago. The victim still hasn't regained consciousness, but the doctors are hopeful.

You see, certain members of her family don't approve of transsexuals. She made the mistake of "coming out" to a family gathering on the weekend.

<i>This morning (Tuesday), they found Raychel. Her nightgown cut from her, but still attached, unconscious and with her skull fractured, her left arm broken, 6 ribs broken... and her nether regions bleeding profusely, though wrapped in a hotel towel.</i></blockquote>

The attack was on the 9th of this month. Not 10 years ago. Not even last year. Less than 3 weeks ago. By her cousins.

<blockquote><i>One of them admitted that two of the others had anally raped her. His statement (was) that, "... it was okay, though, they used condoms," ... The doctors had missed the trauma there because it was minor compared to the beating she had received.</i></blockquote>

This is happening in the USA in 2007. Had there been no videodisc taken of the attack, then the County Sheriff may not have intervened. Lacking a Federal "Hate Crimes" bill, and lacking such unusual circumstances of the attack actually being covertly recorded by another family member (one sympathetic to the victim, not involved in the attack), the attackers would have remained unprosecuted, as is anecdotally almost universal.

Again, given the degree of hatred and bigotry endemic in the nation, to expect laws to follow rather than lead public opinion is a nonsense.

It is a good job I am not a lawyer. There is no way that I could either prosecute, or defend, competently in circumstances such as this. Constant exposure to similar unprosecuted and unpublicised cases over years has obliterated my objectivity. I do though urge those who are more cool-headed than myself to sometimes consider what their words mean in Reality to those affected by them.
10.25.2007 11:28am
Oh My Word:
You did not respond to my point. The argument against these lawsuits is (1) the problems already well documented with the more adventuresome variations on Title VII would simply be more acute with EDNA, (2) the argument is that EDNA would further push religious traditional teachings on sexual conduct out onto the fringe using government power, and (3) the inherent liberty objection and First Amendment (both association and speech) problems.

(1) As for one, look no farther than David Bernstein's work on this. I think Eugene Volokh has posted a lot and done work on this also in the 1s Amendment area. I've posted some links, and for more, just pick up a copy of "You Can't Say That!"

(2) You think this is a good idea, which is fine, but your question is not whether religious tradition on sexual conduct is bad but whether EDNA-style laws have an effect that its opponents fear. The difference between the two I have already addressed.

(3) I reiterate those objections I have already put forth and which have not been responded to. For example, but not limited to, a Christian bookstore.
10.25.2007 1:39pm
Randy R. (mail):
No legislation is perfect. No legislation does only what it is intended to and have no bad effects. As mentioned earlier, all our bill of rights have posed problems and inconveniences upon people. The question is whether the good far outweighs the bad.

With ENDA, of course it does. This is why it's so popular and has been quite effective in 20 states and numerous other jurisdictions. The fact remains that gay people are vulnerable to being fired for no other reason than the fact that they are gay, and ENDA addresses only that. Employment is the only issue here.

I would assume that a Christian bookstore would be exempt as a religious entity. If it isn't, there is very little likliehood that any gay person would want to work there in the first place. But in the small chance that there is, any bookstore would likely have several applicants from which to choose, and can easily find a reason to hire someone else.

In the very small chance that a Christian bookstore hires someone they don't know is gay, and the worker turns out to be a very good worker, and ENDA applies, and then the bookstore fires the person, then as far as I'm concerned, throw the book at them.

but that's just me.
10.25.2007 6:31pm