Presentation at CCCU Presidents Conference

I participated in a panel discussion this morning at the Council for Christian Colleges & Universities Presidents Conference in Washington, DC. The topic was "Legal and Public Policy Issues." I talked about religious staffing freedom -- recent events and imminent threats.

I asserted the threat that religion and sexual orientation nondiscrimination rules pose stems from a more foundational problem: the growing cultural acceptance of same-sex sexual conduct and the corresponding cultural condemnation of those who hold the traditional position on marriage and human sexuality.

I then ran through some developments in this area over the last twelve months: the passage of Prop 8 in California; the discovery of a right to same-sex "marriage" in the Connecticut constitution by the state's supreme court; Congress's failure to enact ENDA; DOJ's publication of the OLC opinion regarding RFRA, federal money, and religious staffing freedoms; the bad decisions in Truth v. Kent and North Coast Women's Health v. Superior Court; and the good outcomes in AFBO v. Iowa and Doe v. California Lutheran.

With regard to what the near future holds, I pointed to the emphasis on "LGBT concerns" on the White House website's "civil rights agenda" page; the likely introduction of ENDA; continuing litigation [much of which the CLS Center is involved in]; and the Obama Administration's approach to religious staffing freedoms in the faith-based initiative.

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.

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.


powered by ODEO

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.