LAST YEAR, A BILL TO PROHIBIT private employers from discriminating against homosexuals was defeated in the Senate by a narrow 50-49 vote. President Clinton had endorsed the bill. A top item on the gay agenda, the Employment Non-Discrimination Act (ENDA) is back this year. The president has reaffirmed his support, and the bill has a number of Republican sponsors, including senators Alfonse D’Amato and James Jeffords (the bill is before Jeffords’s Labor Committee) and representative Christopher Shays. Al Gore and Richard Gephardt support it, too, as does the powerful Leadership Conference on Civil Rights. The bill’s fate will say a lot about whether the era of big government is really over.
ENDA’s proponents are making a simple argument: (a) Discrimination against homosexuals is bigotry, and therefore (b) there should be a federal law against it. This argument contains several mistakes, implicit and explicit.
The first is the assumption that Congress has the power to pass such a bill. The Constitution grants Congress only certain enumerated powers. In 1964, when it banned employment discrimination on the basis of race, ethnicity, religion, and sex in private employment, Congress pointed to two sources of authority: the Commerce Clause and the Fourteenth Amendment. So does ENDA. But the Fourteenth Amendment gives Congress authority to act against state governments, not private businesses. As for the Commerce Clause, it was certainly arguable in 1964 that systemic discrimination against blacks in large parts of the country substantially affected interstate commerce. It was plausible that discrimination against women and ethnic minorities did so, too; less so religious discrimination. But is it credible that, in 1997, discrimination against homosexuals has a substantial effect on interstate commerce? No — and Congress should not pass laws unless it believes it has the authority to do so.
The second flaw in the pro-ENDA argument is its apparent assumption that Congress is obliged to act whenever there is a wrong to be righted. But discrimination against homosexuals in private employment is not the sort of problem that cries out for a national solution. Is there a wholesale refusal in the American marketplace to hire, promote, and refrain from firing homosexuals? Are state and local governments powerless to take action? Are homosexuals themselves without recourse, either individually or collectively? The answer to all these questions is no. There is unlikely to be a pervasive problem if, as Karlyn Bowman of the American Enterprise Institute notes, polls show that 80 percent of Americans believe homosexuals should not be discriminated against in the workplace. Eleven states have already banned such discrimination, according to Fortune magazine; and corporate America- including Disney, IBM, Coors, Ford, and hundreds of other companies — has been quite accommodating to gays, without any intervention by the federal government.
A third problem involves an increasingly forgotten principle: Absent extraordinary circumstances, Congress should not tell people how to use their property and run their businesses. Here again, proponents are likely to argue that if this principle did not stop Congress from passing the Civil Rights Act of 1964, it should not prevent passage of ENDA. Yet there is some point at which the federal government must stop micromanaging private employers’ personnel practices and let them hire whom they want. Where we draw the line determines whether freedom of association and the right to control one’s property are the exception or the rule.
Racial discrimination presented an extraordinary situation justifying departure from free-market presumptions. It was widespread, blatant, and often backed by state and local laws; it was irrational and dictated by no religious or moral convictions; it was a historic problem, national in scope, and clearly not susceptible to local resolution. Discrimination against homosexuals is none of these.
What it can be, however, is an expression of the fact that homosexual activity — which the bill will inevitably be construed to protect — violates the deeply held religious beliefs of millions of Americans. How are they to teach their children that behavior is sinful when the federal government protects it? For millions of others, homosexual behavior is undesirable and linked to a variety of social pathologies. And still others are uncomfortable with placing homosexuals in certain positions, such as Boy Scout leader or schoolteacher. What is the relevance of all this for law and government?
Well, sometimes sinful or undesirable behavior is made illegal — murder and theft, for instance. Sometimes it is not; no one is jailed for failing to honor his father and mother. And sometimes it is made illegal but seldom prosecuted. Much fornication, including homosexual behavior, falls into this category. The idea is to stigmatize certain behavior, even though to prosecute it would be unrealistic.
It might be objected that this stigmatization is not an appropriate function of law and government. Instead, if people want to stigmatize behavior, they should find ways to do so without dragging legislators and lawyers, let alone prosecutors, into the act.
Which is exactly what the Employment Non-Discrimination Act makes it impossible to do.
Quick: Who wants to make private behavior by an adult illegal — the liberals supporting the bill or the bigots 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: the private exercise of one’s freedom of association and control of one’s property in the refusal, if one so wishes, to hire homosexuals.
Such voluntary actions are the most appropriate way in our society to discourage unwelcome behavior: by attaching to it social, even economic, penalties.
The supporters of ENDA really cannot answer the point that many Americans, employers among them, consider homosexuality immoral. They can argue only that in their opinion this belief is wrong and that discrimination against homosexuals is unfair and irrational. Sen. Edward Kennedy’s press release on behalf of the bill said, “What it requires is basic fairness,” and “Job discrimination is not only un-American — it is counterproductive. It excludes qualified individuals, lowers work force productivity, and hurts us all.”
But 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, even if overlooking such behavior would be the response of a rational economic actor. And aren’t private actors more likely than government to know what’s best for their “work force productivity”?
Probably most employers will see no rational or moral reason to discriminate against homosexuals. But that is not the issue. The issue is whether the federal government should prohibit each and every employer — except those expressly exempted by the act — from making that decision. In this regard, it is interesting that ENDA also makes it illegal for an employer to prefer hiring homosexuals. This might give pause to the owners of gay bars and bookstores.
Finally, the law will inevitably have many unintended consequences (as did the laws against racial discrimination, truth be told). It will become reality through litigation and regulation, both costly and highly distortive. A new federal bureaucracy will be created, which will develop its own agenda. And that agenda will come from the gay-rights lobby and will expand the scope of the statute. There will naturally be pressure for the bureaucracy to be led and staffed by homosexuals. The new law will result in lawsuits — some legitimate and many not, but all of them expensive. There will have to be regulations regarding what posters and jokes constitute “harassment” of employees because of sexual orientation. And, if a worker responds angrily to a sexual overture from a homosexual colleague, has either been harassed?
ENDA’s prospects in this Congress are uncertain. Rep. Shays puts the odds at 2 to 1 against. As an isolated bill, it’s hard to see how it could get anywhere near passage in the House; even in the Senate its prospects are not great. The real danger is that it will be added as a last-minute rider as part of a larger deal, by which the Democrats get credit for an item high on the agenda of the gay-rights lobby, and Republicans — always skittish on civil rights issues — show they are not the bigots the New York Times says they are.
Instead, Republican traditionalists and libertarians should join in making it clear now that ENDA is going nowhere. Why should anyone support legislation that is both coercive and inconsistent with traditional morality?
Roger Clegg is general counsel of the Center for Equal Opportunity in Washington, D.C.
