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.
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
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.
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
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.
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.
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.
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.
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.
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.
Kantor lives in Boynton Beach, Florida.