Last week, I called Congressman Frank Wolf’s office and spoke to his aide Andrew. I asked Congressman Wolf to support H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA). I told Andrew that I didn’t expect Congressman Wolf to support the legislation because he’s never supported any pro-GLBT legislation and asked the Congressman write me to explain why an employer should be able to fire me, not because of job performance, but because he disapproves of my sexual orientation. I received a response on November 20, 2009. Here it is:
Dear Mr. Weintraub:
Thank you for sharing your support for legislation (H.R. 3017) to prevent employment discrimination based on sexual orientation. I appreciate your comments.
H.R. 3017, introduced by Rep. Barney Frank, was referred to four House committees for consideration. The bill would make it unlawful for employers to discriminate in hiring practices on the basis of sexual orientation or gender identity.
When similar legislation was considered by the house in 2007, I voted against the bill, which failed to clear Congress. I felt that the legislation risked unintended consequences by failing to adequately protect religious institutions which I believe must have the freedom to make employment decisions based on the basis of their faith-based missions. The bill also had vague standards involving “perceived” sexual orientation discrimination which could invite litigation. Provisions of the legislation also conflicted with the Defense of Marriage Act (P.L. 104-199) which defines marriage as the legal union between one man and one woman.
I do not condone discrimination in any form, but I believe we must be careful when creating laws that we do not legislate the viability of religious convictions.
Reasonable people may have differences of opinion on issues debated by Congress. Please be assured that I respect your views and hope you will continue to inform me of issues of importance to you.
Frank R. Wolf
Member of Congress
As Frank Wolf is both a lawyer and a self-avowed “Christian”, it would be nice to assume that his legal analysis is correct and that he would not bear false witness about the effects of the legislation. Unfortunately, that isn’t the case. As we’ve discussed here, Christianist ideology allows one to say or do whatever they want – no holds barred – so long as their behavior advances the anti-gay agenda. Let’s take a look at Congressman Wolf’s rationale for opposing ENDA.
failing to adequately protect religious institutions…
ENDA is very clear in this regard.
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-2(e)(2)).
According to ChurchLawToday.com “Congress amended section 702 in 1972 to enable religious organizations to discriminate on the basis of religion in all employment decisions.” In 1987, the Supreme Court upheld the 1972 amendment when it ruled against a maintenance employee for the Mormon Church “who was fired because he failed to comply with the church’s standards regarding church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.” If a religious institution can fire a maintenance worker for drinking coffee, it probably has sufficient latitude to fire the maintenance worker for being openly gay or just because the maintenance is perceived to be gay. Religious institutions enjoy great latitude in this regard. Patrick Henry College purged five professors because they believed that knowledge could be gained from sources outside of the Bible. That belief didn’t comport with the theological tenants of PHC.
vague standards involving “perceived” sexual orientation discrimination
The language used throughout the legislation is like the following:
(a) Employer Practices- It shall be an unlawful employment practice for an employer–
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or
(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.
The point is that it is unlawful for an employer to discriminate against an employee because of his or her real or perceived sexual orientation or gender identity. ENDA language plugs a loophole. The employer can’t get away with discrimination by saying “I fired her because I thought she is a lesbian, but she isn’t, so the firing wasn’t discrimination on the basis of sexual orientation”. It’s rather illuminating that Congressman Wolf discovers a non-existent failure to protect a religious institution’s right to discriminate but fails to discover the reason for the legislation in the first place – the history of widespread discrimination against GLBT people. Adding insult, Congressman Wolf contorts the Bill’s language to perpetuate the myth that the employee victimizes the employer. Wolf purposefully rewrites the language as ‘“perceived” sexual orientation discrimination’ implying that employees will sue employers willy-nilly if they “perceive” discrimination. That’s not the language in the bill. The bill says that it doesn’t matter if the employee is gay or straight or perceived to be so. In either case, the employer may not discriminate.
“Provisions of the legislation also conflicted with the Defense of Marriage Act (P.L. 104-199) which defines marriage as the legal union between one man and one woman.”
No they don’t. The bill addresses DOMA explicitly:
(b) Employee Benefits- Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits.
(c) Definition of Marriage- As used in this Act, the term ‘married’ refers to marriage as such term is defined in section 7 of title I, United States Code (referred to as the Defense of Marriage Act).
“we must be careful when creating laws that we do not legislate the viability of religious convictions”
I think this statement gets to the core of Congressman Wolf’s opposition. Religious convictions are not “viable” unless they are realized through behavior. Congressman Wolf believes that “religious convictions” are “viable” when they are imposed on society through public policy. For example, in response to Catholic politicians who make the argument “I am personally opposed to abortion, but I will not impose my views on others”, Archbishop Henry J. Mansell of the Diocese of Hartford, CT responds:
When we ask public officials to leave their religious convictions at the door, are we not depriving them of what is foundational in their existential makeup? Are we not asking them to be fundamentally schizophrenic? Are not our religious convictions basic to our identity?
With respect to ENDA, Congressman Wolf is saying that employment discrimination is not only integral to religious identity, it is also acceptable public policy if the employer holds the “religious conviction” that homosexuality is immoral. Taking this to its logical conclusion, if all employers hold that conviction, all the better. Then, GLBT people will be denied employment across the board and that loss of financial security will surely “help” them “change” their orientation. Frank Wolf’s claim that he does “not condone discrimination in any form” is meaningless.
It appears that Congressman Wolf wrote one response to ENDA queries and then tacked on the final two paragraphs to appease people like me who asked him to vote in its favor. The lies and distortions in the letter are not designed for us. They’re designed to fire up his anti-gay base. The content wasn’t intended for legal or rational analysis. Just compare the arguments in Wolf’s response to this piece written by his friend Chuck Colson. The arguments are the same. Wolf is speaking directly to people who have been miseducated by Colson. It is interesting that Colson appears to have authored the language (and meaning) inversion used by Wolf when he claims that ‘ENDA includes “real or perceived” discrimination’. Colson also produces a rather whopping lie about “viability”:
ENDA would place all the power of the federal government in direct opposition to the beliefs of all major faith groups in America regarding the teachings about sexuality
Remarkable. I wonder if Congressman Wolf read the primary purpose of the bill:
(1) to address the history and widespread pattern of discrimination on the basis of sexual orientation or gender identity by private sector employers and local, State, and Federal Government employers;
Nothing in his response indicates that he did, because if he had, he may have found a religious conviction to apply:
Blessed are the merciful: for they shall obtain mercy.
Blessed are the pure in heart: for they shall see God.
Blessed are the peacemakers: for they shall be called the children of God.
Blessed are they which are persecuted for righteousness’ sake: for theirs is the kingdom of heaven.
Blessed are ye, when men shall revile you, and persecute you, and shall say all manner of evil against you falsely, for my sake.
Matt 5:7-11 (KJV)
As described earlier, Congressman Wolf won’t get it. He’ll continue to be informed by his Christianist allies at the Family Research Council; he votes in lockstep with the FRC legislative agenda, and sports an FRC rating of 100. If you’d like to see just how far out of the mainstream they are, see FRC president Tony Perkins’ testimony before the House Education and Labor Committee, where he opens with the premise that GLBT people shouldn’t even exist. Tony Perkins also appears to be a lead organizer of the U.S. affiliate of the international hate group Watchmen on the Walls. So-called “religious conviction” prevents our own Congressman from recognizing the widespread and persistent discrimination against the eight million GLBT people in the workplace today, including Virginia and twenty-eight other states that have no protections at all. In his view, testimony like this is irrelevant.
Congressman Wolf says that he respects our views. I don’t understand how that can be so. He’s either in favor of discrimination or he’s against it. His letter makes it clear that he believes that he and his fellow Christianists are the ones being discriminated against. That conviction closes his mind to any curiosity, logical argumentation, or willingness to learn from his real, live, GLBT constituents. It also means that Congressman Wolf will continue to lend political capital to local, state, national and international forces whose very identity commands them to discriminate and oppress with religious fervor.