ENDA as Watershed

by Myles Kantor

Plenty of conservatives applauded the Supreme Court’s decision in Boy Scouts of America v. Dale that a New Jersey anti-discrimination law unconstitutionally burdened the Boy Scouts’ First Amendment right of expressive association. (Two exceptions are Joseph Sobran and Virgil H. Huston, Jr. of The Edgefield Journal.) In their elation, they forgot that the fate of New Jersey’s terrible law should have been determined not by a federal judiciary but through the New Jersey political process. States’ rights entail tolerance of palatable and repugnant policies alike; a federal republic does not mandate social conservatism any more than it mandates decadence.

A bona fide First Amendment violation, however, awaits in the proposed Employment Non-Discrimination Act (ENDA). This legislation expands verboten employment discrimination to include sexual orientation. ENDA is nothing surprising, just the logical consequence of Title VII statism.

Suppose members of one of the monotheistic faiths open a restaurant. Their business is prosperous and the amount of patronage requires additional employees. A homosexual applies for employment and is apprised that the proprietors’ religious principles preclude his hire. He proceeds to sue under the now-enacted Employment Non-Discrimination Act. (There is a religious organization exemption to ENDA, but the restaurant wouldn’t make the cut.) The EEOC deploys its tax-subsidized resources on his behalf and obtains victory.

More than a conflict between property rights and antidiscrimination law, this hypothetical raises the constitutional issue of religious freedom. Since the law invoked against the devout proprietors would be federal, a First Amendment interest is salient, specifically the Free Exercise Clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Surely an employment decision made pursuant to faith constitutes religious exercise.

Tyrannical legislation has been an excellent catalyst for asserting first principles in American history. (Consider the effect of the 1850 Fugitive Slave Act on abolitionist solidarity.) ENDA has this catalytic potential.

Religious freedom still strikes a chord among many Americans, the Secular Jihad notwithstanding. Since ENDA is both constitutionally and culturally transgressive, a momentous convergence is present. (Constitutional transgressions should automatically be cultural transgressions, but that’s another matter.) When America’s proprietors of faith realize their constitutionally protected values have been imperiled by a Beltway coterie, concerted opposition is probable.

ENDA’s transgressive duality, in short, would spark a rightist form of confrontation politics. (I emphasize "rightist" to avoid conflation with the Left’s thuggish confrontation politics—destruction of property, trespassing, other good stuff.) Being a conservative form of confrontation politics, the ENDA backlash would demand not revolutionary statism but reactionary rollback. The activism arrayed against ENDA could be linked to reconsideration of Title VII’s premises, spinning off into massive diminishment of illegitimate federal power and renewal of self-government.

Given the calls for centrist governance in the wake of 2000’s electoral tumult, ENDA’s enactment is quite possible as a means of pacifying an insurgent Democratic Party. In fact, ENDA already has significant Republican support, congressionally and otherwise. Environmental Protection Agency Director nominee Christine Todd Whitman has said, "In the spirit of equity, I whole-heartedly support passage of the Employment Non-Discrimination Act." ENDA’s potential passage may derive less from political compromise than common conviction.

Thomas Jefferson observed, "The time to guard against corruption and tyranny, is before they shall have gotten hold on us." While the antidiscrimination apparatus has already taken hold, ENDA’s passage would reinforce its corruption and tyranny.

Political mobilization occurs when government overestimates the tolerance of a citizenry. ENDA is such an overestimation. Hopefully its enactment won’t be necessary to mobilize liberty’s defenders.

January 12, 2001

Myles Kantor lives in Boynton Beach, Florida.