ENDA and religious exemptions

[Andrew Koppelman]

A few clarifications to the points raised by William Esser.  He writes:

>First, ENDA is not the only legislation in the Congress at this time which
>is aimed at achieving the same result.  House Bill 365 (1997) entitled the
>"Civil Rights Amendments Act of 1998" would simply insert sexual
>orientation into the categories protected under Title VII.  This would be
>far worse than ENDA since it (facially) would not allow any exemptions for
>religious organizations.  After Smith, who knows whether or not this would
>pass a Free Exercise challenge.

This must, I think, rest on a misreading of Title VII.  The Catholic Church
refuses to ordain women, but there has never been a successful (or, so far
as I know, an unsuccessful) Title VII suit for this sex discrimination.  If
a church can discriminate against women, I would think it would be
privileged to discriminate against gays.  It's the same statute.  Also, as
I mentioned in my earlier post, RFRA is still on the books.  The Court in
Boerne said that section 5 of the 14th amendment did not authorize Congress
to make the act applicable to the states, but the interpretation of the
14th amendment has no relevance to Congress' authority to create religious
exemptions to its own statutes.  RFRA is by its terms applicable to the
federal government as well as to the states.  Thus, it appears that Title
VII already has a religious exemption.  My question is whether there ought
to be such an exemption.

>
>Second, § 4(2) of the ENDA prohibits discrimination based upon the sexual
>orientation of any associate of the employee.  In essence, this appears to
>create a right to associate for homosexual activity which may cause a
>problem for employers in states where anti-sodomy laws are still in force.
>

Exactly what is the "problem for employers" that is being referred to here?
 Why are the employee's associations any concern of the employer?  Three
fourths of the sodomy laws still on the books apply equally to homosexual
and heterosexual sodomy.  (They are almost completely unenforced.)  Should
employers, in the states that have those laws, worry that their
heterosexual employees may be violating the law by engaging in oral sex?


Andrew Koppelman
Assistant Professor
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu