ENDA, Illinois, and President Obama

President Obama outlines his civil rights agenda on the White House website. About half of the page is a description of his "Support for the LGBT Community." In articulating the president's desire to add "sexual orientation" and "gender identity" to the list of protected characteristics in federal laws and rules prohibiting discrimination in employment, the site observes that Mr. Obama sponsored similar legislation while serving in the Illinois State Senate.

The president's invocation of the Illinois legislation is troubling. The bill that State Sen. Obama sponsored did not exempt religious employers from the ban on sexual orientation discrimination -- a market departure from the statutes adopted in other states. Subsequent efforts to add such an exemption were rejected.

This, of course, does not necessarily mean that President Obama will push for a version of the federal Employment Non-Discrimination Act that lacks a religious exemption. However, it is not particularly reassuring that the president, earlier in his career, was, at a minimum, insufficiently sensitive to religious freedom concerns.

CLS Supports Religious Liberty Housing Bill

Christian Legal Society, through its Center for Law & Religious Freedom, supports the Freedom of Religious Expression in the Home Act of 2008.

See my recent blog post for further details.

Bill Introduced to Protect Religious Expression in the Home

On September 17, the "Freedom of Religious Expression in the Home Act of 2008" (H.R. 6932) was introduced in the U.S. House of Representatives. The bill would amend the Fair Housing Act to enhance the legal protection of the display of religious symbols.

The bill would make it unlawful:

[t]o establish a rule or policy that prevents a person from displaying on the basis of that person's religious belief, a religious symbol, object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship.

The bill is a direct response to the Seventh Circuit's decision in Bloch v. Frischholz, 533 F.3d 562 (7th Cir. Jul. 10, 2008). That dispute arose after a Chicago condo association reinterpreted one of its rules to forbid the posting of a mezuzah and other items on the exterior of owners' doors. An owner who had been displaying a mezuzah filed suit against the condo association, invoking the Fair Housing Act's ban on religious discrimination. The Seventh Circuit rejected the owner's claim, reasoning that the association's rule and enforcement were not discriminatory.

The bill essentially requires those subject to the Fair Housing Act to accommodate the display of religious symbols, subject to certain limitations.

Would Government Penalties for "Too Many" Children Violate Religious Freedom?

Yesterday, USA Today published a column by Oliver "Buzz" Thomas entitled "Might Our Religion Be Killing Us?" Thomas answers the question with a "yes," arguing that the opposition of some religious groups to abortion and birth control and their encouragement of large families is harmful to the environment.

Thomas asks, "instead of providing tax breaks for having more children, shouldn't Congress be providing incentives for having fewer?"

What if the federal or state government imposed tax penalties upon couples who had, say, more than two children? Would this violate religious freedom?

It is not clear how courts would answer. At the outset, a court would consider whether having more than two children is the sort of "religious exercise" protected by the law. To be sure, having children is different, at some level, from prayer, evangelism, baptism, and communion. At the same time, many couples believe that having many children demonstrates obedience to God; even more believe that abortion and artificial birth control are sinful.

A courts would also ask whether the tax penalty is a legally cognizable "burden" on religious exercise. Assuming the court found that the tax penalty burdened religious exercise, it would then likely consider whether the burden was justified by some "compelling governmental interest." At this point, the government would likely invoke arguments about environmental Armageddon. In response, the couple with three kids would argue that the existence of their third child, by itself, will not bring about the ruination of the planet.

A claim under the Free Exercise Clause might not get very far, as the government would be able to argue that the tax penalty on "excess" children is a "facially neutral, generally applicable" rule that doesn't even implicate the Clause, as interpreted by the Supreme Court in Employment Division v. Smith. However, the Religious Freedom Restoration Act (for which Buzz Thomas actively lobbied) still applies to the federal government.

In any event, it is worth noting the irony of a liberal suggesting that the government should interfere with "reproductive freedom" by pressuring married couples to use birth control, have abortions, or abstain from sexual relations.

RFRA and Bans on Religious Discrimination

As readers of this blog know, the freedom of religious organizations to take religious considerations into account in their personnel decisions is under attack. Certain federal statutes forbid participants in federally funded programs from "discriminating" on the basis of religion, even in their employment decisions. One objective of President Bush's faith-based initiative was to exempt religious organizations from these requirements. Legislation designed to accomplish that purpose never garnered the 60 votes necessary to get out of the Senate. As a result, these federal statutory provisions remain.

Of course, the continued existence of these provisions isn't the end of the story. In our view -- and in the view of some courts -- government violates the Constitution when it forbids religious organizations from taking religion into account in personnel decisions. The Constitution isn't the only limit on federal power over religious associational freedom; the Religious Freedom Restoration Act (RFRA) also restrains this power. In essence, RFRA declares that the federal government may not substantially burden religious exercise unless the burden is the least restrictive means of achieving a compelling governmental interest.

The question arises, then, whether federal statutes that condition receipt of federal money upon compliance with a religion non-discrimination rule violate RFRA (when applied to religious organizations). Professor Carl Esbeck of the University of Missouri has a forthcoming essay addressing this question. It is entitled, "The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Service Programs." An abstract of the article is on SSRN, and the paper can be downloaded from that site.

CLS Urges Senate to Retain SAMHSA Charitable Choice Provision

CLS today joined a letter urging the Senate to reject calls to eliminate statutory protections of religious liberty in the legislation governing the federal Substance Abuse and Mental Health Services Administration (SAMHSA).


The "charitable choice" provision of legislation signed in 2000 allows faith-based social service providers to participate in government-funded programs without relinquishing their religious identity. The ACLU, Americans United for Separation of Church and State, the Human Rights Campaign and others want to eliminate this protection of religious liberty. The key issue is whether faith-based organizations participating in government-funded programs may continue to take religion into account in their personnel decisions.

CLS appreciates the tireless work of Stanley Carlson-Thies of the Center for Public Justice on behalf of charitable choice and religious freedom.

CLS Urges Senate Action on Judicial Nominees

CLS today joined a letter to Senators Harry Reid, Mitch McConnell, Patrick Leahy, and Arlen Specter encouraging them to take action on President Bush's judicial nominees. The letter points out that 28 nominees are pending in the Senate Judiciary Committee.

New Threat to Charitable Choice

Secular and religious liberals have asked a Senate committee to eliminate a statutory provision that protects the religious liberty of faith-based social service providers.

The statutory provisions governing the federal Substance Abuse and Mental Health Services Administration (SAMHSA) guarantee that religious organizations providing critical services need not relinquish their religious identity to receive government support of those activities. More specifically, the statute codifies their constitutional liberty to preserve their religious character by drawing their personnel from among those who voluntarily share their religious beliefs.

Despite the widespread legal protection and accommodation of this freedom, a group called the "Coalition Against Religious Discrimination" (CARD) claims that the exercise of this freedom is the sort of invidious discrimination that should disqualify otherwise eligible religious social service providers from participating in government-funded social service programs. CARD sent a letter to the chairman and ranking member of the Senate Committee on Health, Education, Labor and Pensions, asking them to gut the charitable choice language in SAMHSA re-authorization legislation. The language was originally approved by a bi-partisan majority and signed by President Clinton.

CARD's members include the Human Rights Campaign, the ACLU, Americans United for Separation of Church and State, and People for the American Way.

Faith-based social service providers that consider religion in their personnel decisions are more likely to be theologically orthodox or traditional. The religious and secular left understands that, and wants to de-fund their cultural opponents, with little regard to the costs imposed upon those individuals who want services from faith-based substance abuse and mental health treatment providers.

Greg Baylor discusses the Employment Non-Discrimination Act and Religious Organizations on the Albert Mohler Show

Listen to a recent edition of the Albert Mohler radio show, Religious Discrimination and the Narrowing Exception Clause, featuring Center Director Greg Baylor. He discusses the Employment Non-Discrimination Act of 2007, a bill intended to prohibit employment discrimination on the basis of sexual orientation or gender identity, previously analyzed on this blog. He specifically addresses the bill's exemption for religious organizations, which is narrower than the exemption provided in existing employment discrimination statutes, as well as the broader religious liberties issues at stake.


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The discussion begins at 11:10 on the audio file. Mohler references Greg's blog post, Honey, I Shrunk The Exemption! at 12:33.

You may also listen to the show with your desktop media player or download the file.

Albert Mohler is the president of the Southern Baptist Theological Seminary. He holds the M.Div. and Ph.D. from Southern Seminary and has pursued research at Oxford University. Mohler's blog, commentary, and radio show archive are available at http://www.albertmohler.com/.

More on the ENDA Religious Exemption

In an earlier post, I observed that the religious exemption in the recently introduced Employment Nondiscrimination Act (H.R. 2015) was narrower than the more categorical exemption that was in versions of the legislation introduced in previous Congresses.

Instead of categorically exempting religious employers, the new version of ENDA has a more complex, three-part exemption. Although I concede the following characterization is an oversimplification, it is fair to say that the first part exempts houses of worship and the second part exempts from liability other religious employers with respect to their employment of ministers. [The religious exemption is section 6 of the bill. If you're looking at the GPO's PDF, it starts on page 10.]

The third part is, at least to this reader, a little more difficult to understand. It states in part as follows:

Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant.

One might plausibly ask what the phrase "similar positions" means. Similar to what? One conceivable reading is that the positions in question must be similar to those identified in the second part of the three-part exemption, i.e., ministers. If that is what is intended, however, then it is unclear what the third part of the exemption adds, since the second part of the exemption already exempts ministers who don't work in churches.

Perhaps the sentence refers to the scenario in which a religious employer asks employees in jobs that are similar to one another to conform to a religious tenet, e.g., refrain from homosexual conduct. In other words, the sentence is referring to the scenario in which the employer is drawing employees for a particular type of job from among those who share a particular religious commitment. If this is what is intended, then the third part of the exemption does add something to the first two parts. More on what exactly it might add . . . later.

Honey, I Shrunk the Exemption!

Starting with the 103rd Congress in 1994, various Representatives and Senators have been introducing legislation that would ban discrimination in employment on the basis of "sexual orientation." The bills generally are called the "Employment Non-Discrimination Act" (ENDA). [There is an informative timeline on the Human Rights Campaign website.]

Until now, the bills have included broad exemptions for religious employers. This Congress' version (H.R. 2015) is significantly narrower.

It categorically exempts only those employers that "ha[ve] as [their] primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief."

With respect to religious employers that don't fall within this categorical exemption, the ban on sexual orientation discrimination:

shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.

An additional subsection permits a religious employer to require employees in "similar positions" to conform to those religious tenets that the employer deems significant.

One could plausibly contend that this bill, if enacted into law, would subject to liability a Christ-centered, liberal arts college that disciplined a chemistry professor for engaging in homosexual activity. One could plausibly contend that this version of ENDA would forbid the CLS Center for Law & Religious Freedom from declining to hire an attorney who was unrepentently and consistently engaged in homosexual activity. In each example, one can easily imagine a court concluding that the primary purposes of the college and CLS were not the performance of ritual or the dissemination of doctrine. One can easily imagine a court concluding that the positions in question did not fall within the language in the block quote above.

Whatever ambiguity there might be about the precise scope of the exemption, there can be no doubt the ENDA's supporters intentionally narrowed the religious exemption. I suspect that they did so because they concluded that they might be able to get away with it. I have long suspected that religious exemptions in sexual orientation nondiscrimination proposals are merely concessions to political reality rather than reflective of some principled commitment to religious freedom. In other words, proponents of the homosexual legal agenda are willing to eliminate as much religious associational freedom as they can get away with.

The Employment Non-Discrimination Act and the Definition of "Sexual Orientation"

The Employment Non-Discrimination Act (H.R. 2015) has been introduced again in Congress by Rep. Barney Frank (D-MA) and numerous others. ENDA amends Title VII to forbid discrimination in employment on the basis of "sexual orientation" and "gender identity."

Section 3(a)(9) of the bill states that "[t]he term 'sexual orientation' means homosexuality, heterosexuality, or bisexuality."

The definition of "sexual orientation" has been a point of controversy in many of the lawsuits in which the CLS Center has challenged the application of nondiscrimination policies to religious groups. The use of the word "orientation" suggests that it refers to a person's sexual attraction to members of the same sex, the opposite sex, or both. CLS itself -- and virtually all of the theologically conservative Christian organizations we have encountered -- do NOT discriminate on the basis of "orientation" per se. In other words, the fact that a person experiences same-sex sexual attraction does not disqualify him or her from employment, membership, or leadership. It is his or her conduct that primarily matters; whether the person engages in extramarital sexual activity (whether homosexual or heterosexual) is the key thing.

It is hard to imagine that homosexual rights advocates would be satisfied with rules that merely barred discrimination on the basis of orientation per se and thus allowed employers to take conduct into account.

It is not clear to me that ENDA's definition of "sexual orientation" entirely resolves the ambiguity about the phrase. However, I suspect that ENDA supporters would argue that the word "homosexuality," for example, refers not only to one's sexual attraction to members of the same sex, but also to one's participation in same-sex sexual intimacy.