Senate Mulls Outlawing Anti-Gay Job Discrimination; What Will Come of Freedom of Association?

The Senate is scheduled to vote
today on the Employment Non-Discrimination Act (ENDA), which adds
sexual orientation and gender identity to the list of verboten
reasons to deny somebody employment. According to The
Washington Post, all 55 Democrats are on board. They need
five Republicans to join their side to avoid a filibuster and that
may well happen.

Then, of course, it will die in the Republican-controlled House.
It is probably not cynical to suggest that this is all part of the
plan. Okay – maybe it’s a little cynical. But gays were used as a
wedge issue by the right back in 2004 in the midst of the
struggling Iraq War. Now the left’s signature achievement under
Barack Obama’s administration is struggling. Given the incredibly
quick (historically speaking) shifts in opinion in favor toward
accepting gay people, it would be foolish of the left not to try to
run with this and force some tough choices on Republican congress
members leading up to the midterms. The Washington Post
notes that support for ENDA-like laws is now in the
majority in all states:

Nearly all recent opinion polls indicate that a large majority
of the American public — more than 70 percent — supports efforts to
make employment discrimination against gay and lesbians illegal. Of
course, these national numbers are not what the senators are likely
to care about. However, when we use national polls to estimate
opinion by state, we find that majorities in all 50 states support
ENDA-like legislation (note that in 1996, majorities in only 36
states supported ENDA). Today, public support ranges from a low of
63 percent in Mississippi to a high of 81 percent in
Massachusetts.

Libertarians who believe that hiring policies – even
discriminatory ones — fall under the First Amendment’s “freedom of
association” provision may end up getting lumped in with the
religious right on this one (not that this is a new thing).

I
wrote about the prospect of ENDA’s passage back in April,
wondering whether there was actually data that backed up a real
need for laws to protect against anti-gay discrimination in the
first place. Andrew Sullivan noted on Sunday that following the
passage of the federal hate crime laws in 2009, there have been
only two prosecutions for anti-gay cases. But despite Sullivan’s
previous opposition to anti-discrimination laws, he has relented:

[T]he libertarian position on such crimes is largely moot – for
good and ill. The sheer weight of anti-discrimination law is so
heavy and so entrenched in our legal culture and practice, no
conservative would seek to abolish it. It won’t happen. And if such
laws exist, and are integral to our legal understanding of minority
rights, then to deny protection to one specific minority (which is
very often the target of discrimination) while including so many
others, becomes bizarre at best, and bigoted at worst. Leaving gays
out sends a message, given the full legal context, that they don’t
qualify for discrimination protection, while African-Americans and
Jews and Catholics and Latinos and almost everyone else is covered
by such protections. It’s foolish to stick to a principle, however
sincere, in the face of this reality.

Secondly, the federal government has ceased its own
discrimination policies in marriage and military service and
therefore now has some small sliver of moral standing to lecture
private individuals across all states. My objections twenty years
ago are now moot.

Put those two developments together and I would not vote against
ENDA if I, God help us, were a Senator. But I would vote for it
with my eyes open. I don’t think it will make much difference in
reality just as I don’t believe hate crime laws make much
difference in reality. Of course that’s an empirical question and I
promise readers horrified by my luke-warm support of this that I
will gladly recant such skepticism if ENDA truly does lead to a
flurry of successful suits across the country against anti-gay
bias.

I think I’ll stick to my sincere principles. The ending of the
federal government’s discriminatory practices still doesn’t give
them moral standing to lecture anybody about anything. Governments
are not our moral guardians or arbiters and is still prone to
extending and retracting various privileges to certain citizens on
the basis of who is in control.

Over at Cato, Walter Olson out-cynics me by suggesting that
pushing ENDA is a way for politicians to take credit for cultural
shifts they had nothing to do with. He also wonders if
there is an upper limit the number of categories where private
actors’ rights of freedom of association will no longer apply:

[A]t some point we do need to stop adding new groups to the
parade—either that, or see freedom of association turn into a
presumption of something else. At what point do we say no to future
demands that protected-group status be accorded to employees based
on political and controversial systems of belief, physical
appearance (the “looksism” issue), family responsibilities, résumé
gaps because of unemployment or other reasons, or use of lawful
products or engagement in lawful activities in off hours—to name
just a few of the areas that in fact have been the subject of
real-world agitation in recent years? If we say yes to all, we
introduce a new presumption—familiar from the prevailing labor law
in parts of Europe—that no employer should be free to terminate or
take other “adverse action” against an employee without being
prepared to show good cause to a judge. That is exactly the goal of
some thinkers on the Left, but it should appall believers in a free
economy.

That’s reason enough to oppose ENDA, as I see it.