Who gives people the right to work? Is it the employer him or herself, or is it rather the government – the collectivity of the common wisdom (we hope) of the people of the country – which oversees, manages, and administrates the laws of the nation under which the business is set up? I am not speaking here of whatever educational or employment history an individual may have to have that makes that person suitable, or not, to work in a given position. That decision clearly must rest with the employer alone to make. What I am talking about is the fundamental and inherent human right to work, irrespective of race, or gender, or physical or mental impairment, or religious affiliation, or sexual orientation.
This inherent right seems to be under attack these days, based largely on a person’s sexual orientation or gender identity. Much of the problem began with and harkens back to the disastrous 2010 Supreme Court case, Citizens United, which prohibited the government from making restrictions on corporations when it came to political donations. Corporations were seen to be “persons” in this regard, and therefore they were said to have the same rights as individuals regarding “political speech.”
This principle was invoked in the recent Burwell vs. Hobby Lobby case, in which the court decided in a 5 to 4 decision that closely held corporations (i.e., “people”) are not required to follow the law and provide their female employees with no-cost access to modern forms of contraception. Instead, the 5 conservative judges said that it violates the Religious Freedom Restoration Act of 1993, which prevented laws “substantially burdening an individual’s free exercise of religion.”
The logic is that it is substantially burdensome to a company’s right to the free exercise of religion to be required to give women no-cost contraception as part of the organization’s normal insurance package. And, if that is the case, can we now be far from the same principle being applied to the decision not to hire, or to fire, an individual, if this “religious corporate person” finds that individual’s way of living objectionable on religious grounds. This at least is the fear that many LGBT groups have expressed in regard to the Employment Non-Discrimination Act (ENDA) that has been languishing in Congress for some time now.
Just recently, in light of all of the above, such organizations as the American Civil Liberties Union, Lambda Legal, Gay and Lesbian Advocates and Defenders, the National Center for Lesbian Rights, and the Transgender Law Center have all said it is time to jettison support for ENDA because of the inherent major loopholes in it for religious organizations. The one dissenting voice, the Human Rights Campaign, has for the moment stuck with supporting ENDA, (as much as it has no current chance of even being brought to the floor in the Republican controlled House).
What, in fact, is meant by a religiously affiliated organization? We are not talking here only about churches themselves. Instead, what comes under this wide rubric encompasses hospitals, universities, nursing homes etc. But if private companies, “persons” under the law, such as Hobby Lobby, have the right to discriminate based on religious grounds against women and their right to no-cost modern contraceptives, will it be long before the courts say that such companies equally do not have to hire “out gay people,” or transgender persons, because this violates their sincerely held religious beliefs?
The question has been raised again of late in part because the White House has sought a way around the roadblock faced by ENDA in the House of Representatives. Pres. Obama has issued an Executive Order prohibiting companies that do business with the Federal Government from discriminating against people due to their sexual orientation or gender identity. However, according to an editorial piece in the July 9th, 2014 issue of the Los Angeles Times, religious organizations are already up in arms and lobbying the Administration for the right of religious organizations not to be held to this standard.
Rev. Rick Warren, for example, whom the President invited to give the invocation at his first inauguration, was the leader in sending a letter to Pres. Obama with a warning that “an order that didn’t contain a religious exemption would threaten ‘the common good, national unity and religious freedom.’ ” How exactly not allowing organizations to discriminate against particular citizens of a country threatens the common good of that country remains something of a mystery.
Let us imagine a case in point. Suppose a small construction firm contracts with the National Park Service to put up a new entry kiosk at Yellowstone National Park (the first and the oldest national park in the country). And suppose a woman applies for a carpentry job with this firm to work on the project. She is well qualified, has several years of experience, outstanding work habits, excellent references, and has just moved to Wyoming with her wife, whom she recently married in California. But the town where they have settled is a small one, and it’s not long before the wife of the owner of the construction firm hears from the man who happens to live next door to the two women that he “suspects” they are lesbians. The head of the construction company and his wife are devout evangelical Christians, or let us say devout Muslims (if that makes any difference to anyone), and he is extremely uncomfortable with having hired a “known lesbian,” even if he thinks she is performing excellently on the job. If Rick Warren gets his way, the head of this company could summarily fire this otherwise excellent worker, due solely to the fact that she is married to a woman, and because this “offends” the sincerely held religious beliefs of the head of that firm.
Although this is an entirely made-up story, many such real examples take place every day in states where there is no protection for LGBT people against employment discrimination. And even in states where there is such protection, how many teachers have we heard of recently who have been fired from long-held posts in Catholic schools, who have been doing outstanding work and who were loved by their students, solely because it became known that they had recently married their same-sex spouse?
The LA Times editorial goes on to point out that Rick Warren and others have requested that the language of the Executive Order be modeled on language which provides for such religious exceptions in ENDA (thus the objection to ENDA of many LGBT groups). Perhaps an argument can be made, indeed has been made, that a carpenter is not a teacher, who is by definition a role model to children, and so church-affiliated schools have the right to fire teachers who enter into same-sex marriages, if this is against the tenets of their religion. But what of a young man hired by Hobby Lobby, whose supervisor hears that he is gay? Should Hobby Lobby, which under the law is now considered a “person” with sincerely held religious convictions, be able to fire this young man, solely because his private “life style” (so called) offends their belief system?
These are complex questions, pitting the constitutional rights of both sides against each other. Where you come down on the answers depends not only on how you feel about the rights of organized religion, but perhaps also on your own inherent sense of fairness and justice. And let us not forget that in the case of the President’s Executive Order we are talking about spending money that comes from our collective taxes, that is, the taxes of ALL of the people, not just of those who think like Rick Warren.
Do all citizens of the country, LGBT individuals included, deserve the same rights? That, in the end, is perhaps the most fundamental question, and the one that the Rick Warrens of the world ignore to their own ultimate peril.