It was in the air already at the time of Jack Kennedy. We sensed that the principle was being planted, and it was only a matter of time for the implications to unfold: The Catholic politician would detach himself, become in effect a non-Catholic, and then with small but sure steps become the anti-Catholic in politics. In the first step, the Catholic politician assures his audience that his first allegiance is to the law that commonly binds all Americans. Those laws would claim precedence over his faith or his beliefs as a Catholic. In the next step he actively promotes ends (like the “right to abortion”) that are at odds with the teaching of his Church. And finally, he would put in place measures that would stamp the teaching of the Church as bigoted and false; measures that also would have the effect of purging serious Catholics from the professions, the universities, and corporate business. What began with Jack Kennedy has now been completed by the likes of Edward Kennedy, Daniel Patrick Moynihan, and Alfonse D’Amato.
The movement into that final, decisive stage was marked by the effort to bring forward in the Senate the Employment Nondiscrimination Act (ENDA). That bill would have barred discrimination, in private employment, on the basis of “sexual orientation,” which was another way of saying discriminations against gays, lesbians, and bisexuals. This kind of discrimination now would be likened to discrimination based on race, religion, gender, and disabilities.
The bill would be seen, that is, as an extension of the laws on civil rights; it would bring an extension of the federal power over hiring and firing in private firms; and it would bring into play the same apparatus of legal remedies applied by the federal courts. And so, while the backers of the bill insisted that there would be no quotas for the hiring of homosexuals, Orrin Hatch pointed out that the courts would apply the same remedies they applied in cases of racial discrimination. If a company is found at fault in its pattern of hiring, it will be compelled then by a court to show its good faith by setting out a plan to hire more members of the victimized class. In this case, it would mean the explicit hiring of gays and lesbians by order of the court. As Hatch observed, the claim that this bill would not produce a system of favoritism in hiring for homosexuals would be as empty as the avowals made by Hubert Humphrey that the Civil Rights Act of 1964 could never produce a system of hiring on the basis of race.
ENDA would represent a morally portentous step and a massive extension of federal power, and yet it was brought forth in the Senate without the benefit of hearings. It was brought forth in this way because it was meant as a counter to the Defense of Marriage Act (DOMA). The Senate was about to complete action on that bill, which would stipulate that a marriage, in federal law, “means only a legal union between one man and one woman as husband and wife.” The object of that bill was to counter the move in the courts to impose gay marriage, and ENDA was brought forth as a killer amendment. But the two measures were kept separate, and DOMA passed, as suspected, by a lopsided vote, 85-14. Still, it seems to strain the nerves of the Senate when there is a need to summon conviction on anything in the moral tradition; and so many Senators were anxious to show that in affirming marriage, they were not anti-gay. For their own part, the gay-lesbian activists were anxious to offset their defeat on DOMA with something that could offer even the hint of a moral victory. And they gained more than a hint: ENDA was defeated only by a vote of 50-49. For the activists, it was a virtual incitement to revisit that bill in the next Congress. But for the rest of us, it is but another measure of a country that is becoming increasingly numbed or sightless when it comes to crossing serious moral thresholds.
In the first place, there was the most enormous moral leap in moving from discrimination based on race to discriminations based on sexual orientation. Legislators who did not see the difference could not have understood the grounds of that earlier legislation on race. It was wrong to assign benefits and disabilities, rewards or penalties, on the basis of race for the simple reason that race could not determine the moral conduct of anyone. On the basis of race, we could not draw the inference that anyone was likely to be a good or a bad man, a colleague to be sought, or a neighbor to be avoided. In trying to explain that point years ago, we would draw a comparison to other groups, such as arsonists. There, we do cast moral judgments on anyone who falls into the category, and we may rightfully assign punishments. But in this case, the group is defined by the acts that stamp them, or define them, as members of the class of arsonists. There is no attempt here to draw moral inferences about people on the basis of attributes that have nothing to do with their conduct.
In the case of gays and lesbians, we are not dealing now with an inclination to punish. But if people bear objections to homosexuality, they are objections precisely to the conduct that defines homosexual acts. It fell to Senator Robert Byrd (D-WV) to make this point in the Senate, and on the other side, the Republicans were able to quote Colin Powell, trying to explain the same distinction. Still, none of this seemed to make the least impression on Senator Kennedy, who was moving to the drumbeat of another constituency and a different set of interests. Instead, Kennedy was content to cite a list of the churches and clergymen who were supporting his bill: the Unitarian Universalist Associations, the General Convention of the Episcopal Church, the Union of American Hebrew Congregations…. The list went on and on, but most notably missing from Senator Kennedy’s list was his own Church. Its omission did not apparently impress him with the need to offer any explanation—or, for that matter, any effort on his part to give reasons for departing from the teaching of his Church. But more than departing: He was joining now the judgment of the Supreme Court in Romer v. Evans and suggesting that the moral objection to homosexuality, taught by his own Church, reflected nothing more than animus or bigotry.
His only concession to the religious was that ENDA would not apply to churches or religious institutions. But as Senator Nickles (R-OK) aptly pointed out, the assumption of the sponsors was that serious Christians left their convictions in the church. But if they take seriously the teachings of their religion they would in fact apply them in their private lives, including the part of their lives spent in their private businesses. In one notable case in Boulder, Colorado, the wife of a shopkeeper gave some literature on homosexuality to a gay employee. For that act she was brought up on charges under a local ordinance on gay rights and compelled to enter a program of compulsory counseling. Under ENDA, the Church may not be compelled to admit gays to the priesthood or renounce her teaching on homosexuality. But as Nickles suggested, a Christian bookstore might not be able to turn away an applicant who wears a T-shirt endorsing the gay or lesbian life.
And yet, as Hatch and Nickles pointed out, the matter runs well beyond the freedom of people, in their private settings, to honor their own moral understandings. For serious Christians and Jews, there would be a grave liability simply in expressing their convictions. For in doing that they run the risk of providing the predicate for a grievance, for a charge of creating a “hostile environment.” And if found guilty, they would invite an award of damages along with the supervision of a federal court.
But if we follow out the thread, the matter must become even worse: A firm will now risk legal liabilities if Christian and Jewish views are sounded prominently in its offices, and in that event there will be the firmest incentive to forestall the problem at the root. I discussed this matter at a conference televised in July, and the program elicited a call from a friend in New York, a senior partner at an established law firm. When the bar association had proposed rules dealing with discrimination on the basis of sexual orientation, he had opposed that move in public. In opposing it, he had raised his concerns as a man committed to Catholic teaching. He had been, up to that point, a member of the recruiting committee in his firm, visiting law schools and interviewing applicants for jobs. But after his position on the issue of homosexuality had become known publicly, he was discreetly dropped from the committee on recruitment. And he wondered whether plans were subtly afoot to separate, from the decisions on hiring and firing, the partners who were known as “serious” Christians or Jews. But more than that: There would be a powerful incentive now to deal with the problem at the root by the simple device of declining to hire, at the threshold, young lawyers who were “overly religious.”
In other words, under a bill brought forth by Senator Kennedy and supported by Senators Moynihan and D’Amato, serious Catholics would not only be silenced under the threat of federal law: Law firms and corporations would come under the clearest incentive to avoid the hiring and promoting of Catholics. The bill was called the Employment Nondiscrimination Act, but it is a measure for purging Catholics from the professions and from the executive offices in corporate business. The bill should have been named more aptly the Act to Remove Serious Christians and Jews from the Professions and Corporations, or more succinctly, the Christian and Jew Removal Act. When public officials do something that smacks of hostility to Jews, Jewish organizations will not hesitate in naming them as anti-semites. But Senators Kennedy, Moynihan, and D’Amato make a move, without a tremor of hesitation, that puts them at war with Catholics, and yet no leading voices in the Church come forward to call them by their rightful names.
The disposition of the Church is persistently to look for a ground of forgiveness and conciliation before condemning. And if that is the case, perhaps the Church can begin here: Perhaps Cardinal O’Connor, or Cardinal Law might invite these senators to appear at a meeting of Catholics to explain what they are doing to ensure that any bill of this kind in the future will not become, in effect, the Christian and Jew Removal Act. But the explanation, if it comes, could only be a fig leaf: Anything that protects Catholics and Jews would have to call into question the moral premises of the legislation. And the only arrangement for protecting the right of Catholics to be Catholics is to avoid enacting any measure of this kind into law.