The United States Conference of Catholic Bishops is urging members of Congress to oppose the Employment Nondiscrimination Act (ENDA), whose passage has been a priority for homosexual advocacy groups since its introduction in 1994.
Archbishop Joseph Kurtz of Louisville, chairman of the USCCB Ad Hoc Committee for the Defense of Marriage; Bishop William F. Murphy of Rockville Centre, chairman of the Committee on Domestic Justice and Human Development; and Archbishop Donald Wuerl of Washington, chairman of Committee on Doctrine explained:
Just as every other group in our society, the Catholic Church enjoys the same rights to hold to its beliefs, organize itself around them, and argue for them in the public square. This is guaranteed by our Constitution. This includes the right to teach what it holds to be the truth concerning homosexual conduct—and to act as an employer consistent with that truth—without the threat of government sanction.
The USCCB continues to oppose “unjust discrimination” against people with a homosexual inclination, but we cannot support a bill – such as ENDA in its current form – that would legally affirm and specially protect any sexual conduct outside of marriage.
Moreover, because the passage of such a bill could be used to punish as discrimination what the Catholic Church teaches, the USCCB has always sought as comprehensive a religious exemption as is achievable, in order to protect the religious freedom of the Church, and of all others who hold similar views. One partial solution to this problem is to apply Title VII’s prohibition on religious discrimination, which is already incorporated in the current version of the bill.
But this is insufficient alone, as the Title VII protection does not cover all religious employers, and recent experience teaches that even covered institutions may face government retaliation for relying on such exemptions. Without such additional protection, ENDA would be applied to jeopardize our religious freedom to live our faith and moral tenets in today’s society.
The movement to redefine marriage to include two persons of the same sex (a.k.a. same-sex “marriage”) has changed the law substantially toward that end, at both the state and federal level, and it has become increasingly clear that laws like ENDA have been instrumental to those changes.
For example, we have seen state Supreme Courts repeatedly rely on state-level ENDAs as a basis for creating a state constitutional right to same-sex “marriage.” We consider it very likely that ENDA, despite referencing DOMA, could be used for similar purposes at the federal level. The highest courts of California, Connecticut, and Iowa have declared that the traditional definition of marriage is “discriminatory” and lacking any “rational basis,” and so violates the constitutions of their respective states. Cases are now being brought in order to create a federal constitutional right to same-sex “marriage”—whether by striking down federal DOMA, or by striking down California’s Proposition 8 in federal court. If ENDA were to pass, we would expect lawyers to invoke it in federal court under the federal constitution, just as they invoked analogous state laws in state constitutional litigation. If this strategy were to succeed, it would represent a legal and moral disaster comparable in many ways to Roe v. Wade. As leaders of the Catholic Church, we have a moral obligation to oppose any law that would clearly contribute to this outcome.
These rulings also reflect a legal strategy that gay rights advocates have repeatedly and publicly explained in scholarly articles and other media—first, secure the passage of sexual orientation antidiscrimination laws, such as ENDA, and then invoke the principle embedded within those laws as a basis for same-sex “marriage.”
In addition to ENDA’s protection of same-sex conduct, its threat to religious liberty, and its contribution to the cause of same-sex “marriage,” there are other obstacles to its passage. The bill’s treatment of “gender identity,” which was not in the 2007 bill, would have an adverse effect on privacy and associational rights of others. The bill also lacks an exemption for a “bona fide occupational qualification” (BFOQ), for those cases where it is neither unjust nor inappropriate to consider an applicant’s sexual inclination.
Curiously, the May 19 letter had not been posted on the USCCB’s web site as of May 26; instead, a copy was published on the blog of America Magazine.