The Employment Non-Discrimination Act (ENDA) just passed the Senate last week with a significant majority. Action from the U.S. House of Representatives remains to be seen but is likely unlikely. The Senate version of ENDA is one where most persons who identify as LGBTQ would be protected from discrimination in the workplace: a noteworthy objective, I say. As a federal law, ENDA would include exemptions for employers who employ less than fifteen people, the military and certain religious organizations.
As an objective consideration, attempts to reduce discrimination of any person in a free society should be applauded. It is paramount for such a society to avoid engaging in the establishing of preferences toward certain members of its society above others. The U.S. adheres to constitutional law as its guiding doctrine of our free society. In the case of ENDA, the classic “battle of amendments” may ensue. One could conceivably predict ENDA, a federal law, pitting the Tenth Amendment (states’ rights) against the Commerce Clause; perhaps another possibility would divide the First Amendment against itself regarding Freedom of Religion versus Freedom of Speech.
However, caution should be taken in passing this particular version of ENDA. As has been seen with the numerous lawsuits over the Affordable Care Act’s HHS Mandate, there may be too much room for subjective interpretation in the language of the bill. The use of ambiguous verbiage in the Senate version of ENDA does not clearly define the breadth and scope of religious organizations. Without clear definitions, lawsuits and concerns over the autonomy of religion from the state will be unavoidable: case in point being the many lawsuits seen today among religious businesses and HHS Secretary Sibelius. The protection of religious liberty is absolutely fundamental to this society’s survival. Every scrutiny should be applied to any law, which could impact it.
As a further consideration, calling into question the exemption for the military should occur. In a logical sense, it would seem odd to not have an anti-discrimination policy such as ENDA apply to the military, which is so charged with protecting ENDA (that is, the law) from any foreign or domestic foe. Such an exemption seems very inconsistent with the outlined intent of the law and calls into question an apparent prioritization of the military elite above the rights of the masses.
Thirdly, the exemption of small businesses (under 15 employees) seems to undermine the principled objective of this bill. Since it aims to define discrimination against LGBTQ identification as unlawful — even objectively wrong — questions arise in the swift exemption of small business. If it’s wrong to discriminate in corporate business, why not so in the smaller arenas?
These holes, which exist in the current Senate form of ENDA, should lead the House, if they take up the bill, to add more clear language and close logical holes in the present form. Partiality should be granted especially to religious liberty so as to avoid further legal conflict between church and state. This nation would know much more stability if it focused on passing not only legislation with good intent, such as EDNA, but also good legislation, that is to mean: clean, clear and logically written law that leaves little room for subjective interpretation. To have a good intention is one thing: equally important, however, is the drafting of that intention into language, which is able to protect and carry out the mission, lest it be undermined. As written, ENDA is sloppy and vague. Hopefully, but doubtfully, the House would be able clear up the inconsistencies and ambiguities.