n April 24, the Senate Health, Education, Labor, and Pensions Committee voted favorably on S. 1284 (the House counterpart is H.R. 2692), which would ban discrimination on the basis of sexual orientation by public and private employers. This Employment Non-Discrimination Act (ENDA) provides, "The term 'sexual orientation' means homosexuality, bisexuality, or heterosexuality, whether such orientation is real or perceived." The legislation came within one vote of passing the full Senate when the body was Republican-controlled in 1996, so its chances of passage would appear to be pretty good this time around. Which is too bad.
The bill's proponents make a simple argument: (a) discrimination against homosexuals is wrong, and therefore (b) there should be a federal law against it. But this simplistic argument is wrongheaded for several reasons.
OF CONGRESSIONAL AUTHORITY
That leaves the first
two. When it passed the Civil Rights Act of 1964, banning discrimination
on the basis of race, ethnicity, religion, and sex in private employment,
Congress likewise pointed to the Commerce Clause and Section 5 of the
Fourteenth Amendment. The Commerce Clause grants to Congress the "Power
... To regulate Commerce ... among the several States ...." Section
5 of the Fourteenth Amendment gives Congress the "power to enforce,
by appropriate legislation, the provisions of this [amendment]" which,
in Section 1, provides that "No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws."
Consider first the Commerce Clause. In United States v. Lopez, decided in 1995, the Supreme Court reminded Congress that it had to do more than simply assert that an activity it sought to regulate had some "effect" on interstate commerce. Rather, that effect had to be "substantial." Now, it was certainly arguable in 1964 that the widespread and systemic discrimination against blacks in large parts of the country had a substantial effect on interstate commerce. It is arguable that discrimination against women and ethnic minorities had such a similar effect, too; less so in the case of religious discrimination. But can it be credibly argued that, in 2002, discrimination against homosexuals has a "substantial" effect on interstate commerce? Come on.
When I made this point to a Hill staffer not long ago a Republican Hill staffer he replied that the argument that ENDA is beyond Congress's enumerated powers would be persuasive to members of Congress only if they were 90 percent certain that a court would strike it down. It is the courts' job to strike down unconstitutional statutes, in other words, not Congress's job to refrain from passing them. I reminded him that senators and representatives, no less than federal judges, are sworn to follow the Constitution. They are obliged to ask themselves, before voting, is this bill within the authority that the Framers meant Congress to have? And if it isn't they shouldn't vote for it.
As to Section 5 of the Fourteenth Amendment, it gives Congress authority to act only against state governments, not private businesses. And even as to state actors, it seems unlikely that Congress can force them to hire homosexuals. Under Section 5, Congress can do no more than enforce compliance with the Amendment; and it is unclear why a refusal to hire homosexuals would be inconsistent with the Amendment when the Court has held, in Bowers v. Hardwick, that the Amendment allows states to prosecute homosexual activities.
Moreover, it should
be borne in mind that Congress was stretching its authority to
perhaps beyond the breaking point when it prohibited private employment
discrimination on the basis of race, ethnicity, religion, and sex in 1964.
Where there is no state government action, as there usually will not be
in private employment decisions, Congress has no Section 5 authority.
And as high-minded as it may have been, a ban on discrimination is not
obviously a way to "regulate Commerce ... among the several States";
a regulation of a business in a state, surely, but not of "commerce"
and not "among the several States." (ENDA's attempt in its section
13 to trump the states' sovereign immunity under the 11th Amendment raises
still other problems.)
The answer is no. Corporate America has been quite accommodating to gays already, without any intervention by the federal government; states and municipalities have shown themselves willing to intervene, too; and for better or worse gay activists have succeeded in making antigay discrimination decidedly uncool.
A third principle is that, absent extraordinary circumstances, Congress should not tell people how to use their property and, especially, how to run their businesses.
Here again, ENDA's proponents are likely to argue that, if this principle did not stop Congress from passing the Civil Rights Act of 1964, then why should it prevent it from passing ENDA? But everyone should admit that, at some point, the federal government must stop micromanaging a private employer's personnel practices and let him hire whom he wants. Where we draw the line will determine whether our principles of freedom of association and private property are to be the exception or the rule.
Racial discrimination presented an extraordinary situation justifying departure from the usual free-market presumptions. It was widespread, blatant, and often governmentally codified and mandated; it was irrational and dictated at least in the 20th century by no religious or moral convictions; it was a historic problem, national in scope, which was clearly not susceptible to local resolution. Discrimination against homosexuals is simply not in this league.
AND PERSONAL FREEDOM
In discussing this point, something should be said at the outset about the distinction between homosexuality and homosexual behavior. While this can of course be an important distinction morally, it is very doubtful that the drafters of ENDA intended it, that its supporters want it, that the bureaucracy which will write the statute's regulations and enforce the statute will allow it, or that federal courts will recognize it. What reaction from his lawyer, let alone an EEOC bureaucrat or federal judge would an employer expect were he to justify his firing of a homosexual on the grounds that it was not the homosexuality per se that prompted the firing, but rather the fact that the employee was engaging in homosexual activities? Indeed, ENDA implies that it is only "nonprivate sexual conduct" whatever that means for which employers may have rules.
Let us continue with the point with the fact that millions of Americans believe that homosexual behavior violates sincerely and deeply held religious beliefs. It is, in other words, a sin. What is the relevance of this fact for law and government?
Well, sometimes sins are made illegal murder and theft, for instance. Sometimes they are not; no one is jailed for failing to honor his father and mother. And sometimes they are made illegal but seldom prosecuted. Much fornication, including homosexual behavior, falls into this category. The idea is to stigmatize certain behavior, even if it is unrealistic to prosecute it.
It might be objected that this is not an appropriate role for law and government. Instead, if some people want to stigmatize certain behavior then they should find ways to do so without dragging legislators and lawyers, let alone prosecutors, into the act.
Which, of course, is exactly what the Employment Non-Discrimination Act makes it impossible to do.
Quick: Who wants to make private behavior by an adult illegal those supporting the bill or those opposing it? And who wants to use the government to force people to act against deeply held personal beliefs? It is, of course, the proponents of the bill who want to make private behavior illegal, not its opponents. The private behavior is the exercise of one's freedom of association and control of one's own property to refuse, on occasion, if one wishes, to hire homosexuals.
Such private actions, voluntarily undertaken, are the most appropriate way in our society to make the point that, legal or not, certain behavior is unwelcome and to be discouraged that there will be social, even economic, penalties to be paid.
As for immorality, the supporters of ENDA really cannot answer the point that homosexuality is considered a sin by many Americans, employers among them. ENDA's proponents may think that discriminating against homosexuals is immoral, but many others think that what is immoral is acting as if homosexuality is no big deal. And so ENDA's supporters must also argue that discrimination against homosexuals is unfair because it is irrational. Sen. Kennedy has declared that what the bill requires is "basic fairness" and that "[j]ob discrimination is not only un-American it is counterproductive. It excludes qualified individuals, lowers workforce productivity, and hurts us all."
Good old Sen. Kennedy, helping stupid employers make the best business decisions, based on his vast personal experience in the private sector. And, by the way, unfair how? Adultery bears as little relationship to work performance as homosexuality does; are we then to conclude that it is unfair and so ought to be illegal to fire someone for adultery? People are entitled to think that certain activities are wrong even if they have nothing to do with workplace performance, and even if overlooking such behavior might be the appropriate response of a rational economic actor.
And, anyhow, is it irrational to think that, everything else being equal, a heterosexual is likely to be a better employee for a particular job in a particular workforce than a homosexual, or vice versa? Are we really to believe that it is irrational for someone to think that there might be some correlation between being a homosexual or heterosexual and some other, any other, trait personal, behavioral, psychological, emotional, or physical?
Of course, all this means that an employer should also be free to prefer hiring homosexuals if he wants. ENDA would make that illegal, too. So a gay bookstore that wanted to give a preference to hiring gays would be violating ENDA, as would a bookstore specializing in Hasidic literature if it wanted to give a preference to hiring people who were not likely to be "perceived" ENDA's word as homosexual. Neither preference is "irrational," nor is it irrational for the Boy Scouts to prefer hiring straights, nor for an organization fighting for the right of gays to be hired by the Scouts to prefer hiring a gay spokesperson, and so on.
Under ENDA, it is too bad if the employer believes that most of his other employees, or clients or customers, might prefer to work with someone who is not a homosexual, or not a heterosexual. But it is not irrational for an employer to want to keep as many of his employees, customers, and clients as happy as possible. These third-party preferences may or may not themselves be rational, but surely it is not irrational for an employer to indulge them. To be sure, we have made it illegal to indulge such preferences in the case of race, for instance, but it does not follow that this third-party indulgence was ever irrational for the employer, or that it should be made illegal as regards homosexuals just as it was for race.
Perhaps most employers, most people, would conclude that they see no rational reason to discriminate against heterosexuals or homosexuals. But that, of course, is not the issue. The issue is whether the federal government should prohibit each and every employer from making that decision.
And we should not be afraid to admit that, even in the case of race, the results of federal legislation were not an unalloyed good. To the contrary, there have been real social and economic costs: spurious litigation, overbearing federal bureaucracies, dubious personnel practices, and unintended consequences like "disparate impact" litigation and institutionalized reverse discrimination.
There will be a lot slippage between the ideal of the law passed and its actual consequences. The law will become reality through litigation and regulation, two costly and highly distortive media. One way or another, a new federal bureaucracy will be created, which will inevitably develop its own agenda. And that agenda will, equally inevitably, come from the gay-rights lobby and will distort and expand the scope of the original statute. There will naturally be pressure for the bureaucracy to be staffed and led by homosexuals, and certainly that they not be "underrepresented" with less than the fictional "ten percent" of the population.
It will result in lawsuits some legitimate and many not, but all of them expensive (ENDA of course provides that prevailing plaintiffs get attorney fees). Every homosexual with a straight supervisor, and vice versa, who isn't promoted will have a ready-made lawsuit. And the case law, like the bureaucracy's regulations, will lead in unexpected directions. For instance, will it have to be proved that the employer knew that the plaintiff was a homosexual (this is usually not an issue in a case where the plaintiff is black, or female, or older, or in a wheelchair)? This, of course, will create an incentive for homosexual employees to make their status widely known.
To give another example, there will have to be regulations regarding what constitutes "harassment" of employees because of sexual orientation, just as we now have regulations regarding other forms of harassment. Jokes about homosexuals or featuring homosexual stereotypes will now have to be policed, of course. Posters that homosexuals might find offensive would be prohibited and, conversely, posters with a homosexual orientation would have to be allowed to the same extent that those with heterosexual orientation were allowed. But what if as is likely heterosexuals are made more uncomfortable by gay erotica than homosexuals are by straight erotica? Similarly, do the rules for homosexual overtures have to be identical to those governing heterosexual overtures? Overtures are now illegal if "unwelcome," but if a coworker responds angrily to a sexual overture from a homosexual employee and not from a heterosexual employee, have both been harassed, or neither, or just one? If the rejection of a gay overture is more likely to be angry or even violent than the reaction to a straight overture, do we have a "hostile environment" for gays that means the employer has violated ENDA?
These questions will all have to be answered, not on a case-by-case basis by a variety of employers in different settings and with sensitivity to particular workplaces and locales, but on a one-size-fits-all basis by federal bureaucrats in Washington, D.C.
Doubtless there are some instances of antigay discrimination that many or even most Americans would lament and that might be prosecuted if but only if ENDA becomes law. But there will be relatively few such cases, and weighed against them must be the inevitable specious suits, the enforcement expenses, the dubious regulations and the important costs of enacting yet another federal law of dubious constitutionality that violates free-market, freedom of association, and federalism principles. It's not worth it.
Roger Clegg is general counsel of the Center for Equal Opportunity.