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Employment Protection for Gays in all 50 States Passes House

Timothy Kincaid

November 7th, 2007

365Gay.com is reporting that the Employee Non-Discrimination Act (ENDA) passed the House of Representatives today without provisions protecting the Transgendered.

ENDA, as currently worded, would make it illegal for employers to discriminate on the basis of sexual orientation in hiring, firing, promoting or paying an employee.

A senate version has not been presented and the President has promised a veto based on what seem to me to be spurious objections. Nonetheless, the House amended the bill to address the President’s concerns. Should the Senate pass the bill we will get to see whether the President had legitimate concerns or whether he’s just committed to vetoing protections for gay citizens.

NOTE – although 365Gay is reporting that the vote was “mostly along party lines”, Towleroad informs us that 35 Republicans voted in favor of the bill. By my count, 33 Democrats did not vote for the bill.

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David
November 7th, 2007 | LINK

What authority does Congress have to regulate the employment practices of all businesses that have 15 or more employees?

Ben in Oakland
November 8th, 2007 | LINK

David: Let’s get rid of ALL civil rights laws.

David
November 8th, 2007 | LINK

Ben in Oakland,

You want to repeal all congressional statutes pertaining to civil rights?

Are you serious? Or are you being sarcastic?

Ben in Oakland
November 9th, 2007 | LINK

Wel, you asked the question. If congress has no business regulating the employment practices of business with reagrds to gay people, what business does it have doing so with regard to race or, especially, religion?

Referringto an article on ENDA in the SG Chronicle, which I wrote on: “‘An unneeded law–a preference is not a right.’”

Sexual orientation is neither choice nor “preference”. Religious belief, protected by discrimination laws and by ENDA, clearly is both.
The irony is that the discrimination that gay people face is usually founded on religion.
Substitute the words “religious beliefs” for “sexual preference” in Gilbert’s polemic, and one could easily argue for eliminating laws which prohibit discrimination on the basis of religion, laws which I’m sure Gilbert supports.
But then, I suspect that this is not about “unneeded laws” and “preferences”, but just about plain old prejudice– as always.

David
November 9th, 2007 | LINK

Ben in Oakland,

You wrote, “Let’s get rid of ALL civil rights laws.” That would include repealing the Voting Rights Act of 1965 which was essential in smashing Jim Crow. Now you must admit that is a strange response to my question about what constitutional power Congress is exercising in regulating the employment policies of businesses with 15 or more employees.

I asked my question because I worry about the way people’s policy desires overule something all citizens should share: a desire for constitutional governance.

Your comment about eliminating all civil rights laws suggests another question: How is employment, especially private employment, a matter of civil rights?

Timothy Kincaid
November 9th, 2007 | LINK

David,

The same authority that the congress had for the Civil Rights Act of 1964 is the same authority that Congress has for passing ENDA. The two bills are strikingly similar.

Title VII of the Civil Rights Act of 1964 prohibited employment discrimination on the basis of race, color, religion, sex or national origin.

So if you oppose ENDA on constitutional grounds, then you must oppose the Civil Rights Act on the same grounds. I think that perhaps you should familiarize yourself with how employment and civil rights legislation interact.

David
November 9th, 2007 | LINK

Timothy,

Your response assumes that Congress had authority to enact all parts of the Civil Rights Act of 1964.

My question is not about whether or not employment discrimation is good or bad. I am simply asking you and Box Turtle Bulletin readers to give their opinions on exactly what constitutional powers Congress is using in regulating employment practices for all businesses with 15 or more employees. You have not even attempted to answer this question.

I am well aware of how governmental employment and civil rights legislation and enforcement can interact. But that isn’t what my question to Ben in Oakland was about. I was asking just how employment with a private employer is a civil right.

Jason
November 9th, 2007 | LINK

shot in the dark, but how well someone performs a job has absolutely nothing to do with what they worship, their skin color, their gender or their sexuality.

and David, I think you misunderstand the legislation. It doesn’t say that employment is a civil right, but rather that not being denied employment based on superfluous grounds is a right. That’s not the same as saying that employment, in and of itself, is a right.

Ben in Oakland
November 10th, 2007 | LINK

Jason asnwered the question

David
November 10th, 2007 | LINK

Jason,

If employment is not per se a right, then how can not being denied employment — for any reason — be a right?

But that is not really what I asked. I asked about employment as a civil right. A civil right is a right you have vis-a-vis the state. Freedom of speech is a protected civil right in the US. But that doesn’t mean I’d be violating your freedom of speech if a refused to hire you because of what you say.

Even if employment isn’t a civil right, that does not rule out employment by businesses with 15 or more employees falling under Congressional jurisdiction. But my original question remains: From where in the Federal Constitution does authority for ENDA come?

Randi Schimnosky
November 11th, 2007 | LINK

David, it comes from the right to equal protection under the law. Case closed.

David
November 11th, 2007 | LINK

Randi,

The equal protection clause is part of Article one of the 14th amendment, which is about the relationship between the state governments and the individuals under their jurisdiction.

I fail to see how citing it amounts to a “case closed” concerning a law that regulates the relationship between private businesses and their employees.

David
November 11th, 2007 | LINK

Randi,

Please let me thank you for giving a direct answer to my question.

Timothy Kincaid
November 12th, 2007 | LINK

David,

You are confusing two things: governmental authority and civil rights.

Your question is whether the federal government has the authority to regulate business hiring practices. Your question should be the opposite: why would the government NOT have the authority in this situation.

There is a great deal of precedent for the federal government interferring in employment practices. This is just one item in a long list.

For example, the federal government can require that all employers hire only legal residents. And it does.

The federal government can require that all employees pay a minimum wage. And it does.

The federal government can set standards for occupational safety. And it does.

The federal government can demand that employers collect and remit income taxes from their employees.

The federal government can require that employment and promotion not be based on race or religion. And it does.

The federal government can require that employment and promotion not be based on sexual orientation. And this is the bill that is currently in process.

Citizens may not have an inalienable civil right to be free from employment discrimination. But the government does have the power and authority to regulate business hiring practices.

That you don’t like it says very little about the government and it’s powers and a great deal about you. That you have no objection to racial or religious protections but do seem upset by orientation protections tells us even more.

Randi Schimnosky
November 12th, 2007 | LINK

David, see the problem with people like you is that you never complained about anti-discrimination laws when they didn’t include gays, you were perfectly fine with them then. Now that it has been proposed to give gays the same protections religionists have you want to whine that somehow there’s no basis for that. You’re a hypocrite. You never complained when it was you religionists being protected, never said there’s no basis for it, but now all of a sudden you want to try and make a case that its not deserved just because its proposed to give gays the same rights you have.

If ENDA is vetoed there’s no way in hell you’re going to continue your rant that there’s “no constitutional basis” for the law that as it stands protects people on the basis of race, religion, etc. Take your disingenous “concerns” elsewhere. Gays deserve the same rights you have and that’s what the equal protection clause demands. Case closed.

David
November 13th, 2007 | LINK

Timothy,

I am confusing governmental authority and civil rights? I don’t see how you figure that. It was Ben in Oakland who first brought up civil rights laws with his sarcastic question! But then, good for him. Bills like ENDA are always brought up as civil rights legislation. I simply asked how employment per se could be a civil right, and how private employment could be a civil right.

You write:

“Your question is whether the federal government has the authority to regulate business hiring practices. Your question should be the opposite: why would the government NOT have the authority in this situation.”

I sorry, Timothy, but this indicates you don’t understand the US Constitution at all. The government of the United States is established by the several states. It draws its sovereignty and authority from them. The Federal Constitution grants the US government only those powers specifically delegated to it. Even though this principle is intrinsic to the entire document, the first Congress made it explicit in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As I stated in my third comment above, I asked my original question out of my concern “about the way people’s policy desires overule something all citizens should share: a desire for constitutional governance.”

Your response to this is just plain silly. Yes there is precedent for the federal government interfering in other employment related matters. But that isn’t evidence that the federal inteference is constitutionally authorized. Uncle Sam has a long history of usurping authority from the states and the citizenry.

So I ask you, Timothy, how do you know that the examples you cited are constitutionally authorized? If you can’t cite a constitutional power and explain its applicablility, then you don’t know. If you can’t do this with ENDA, but want it enacted anyway, then you obviously don’t care whether ENDA is constitutional or not.

I think we should care about the constitutional basis of a law as much as we care about its policy effects. Just what does that say about me, Timothy? Please let me know.

Oh, and by the way, when you wrote, “The same authority that the congress had for the Civil Rights Act of 1964 is the same authority that Congress has for passing ENDA,” I replied: “Your response assumes that Congress had authority to enact all parts of the Civil Rights Act of 1964.” I was acknowledging that if Congress had no authority to regulate employment regarding sexual orientation, it had no authority to do so regarding race or religion either. I appreciate the way you closely read my comments before calling me a bigot.

David
November 13th, 2007 | LINK

Randi,

So this is the way you respond to my expression of gratitude?

I ask a question that forces people to think about proposed legislation, you give an answer you claim is a slam dunk, I say the matter isn’t as closed as you claim. Do you attempt to intellectually justify your position? NO. Instead you launch into a personal attack on me.

You need to read my above reply to Timothy Kincaid. You have no right to call me a hypocrite — you don’t know me! You sure as hell don’t know what I’ve said about any anti-discrimination laws in the past.

For you information, Randi, I am not religious. I follow no creed, worship no deity. So your calling me a ‘religionist’ was way off base.

It seems the only case closed here is that it is your arrogant presumption that should be taken elsewhere.

Jim Burroway
November 13th, 2007 | LINK

Randi,

I have to agree with David’s complaints here. I think he’s trying to raise some valid points — even if I or many here don’t agree with him. His comments have been respectful throughout this thread and didn’t warrant the response you gave.

Everyone, please review and adhere to our comments policy. That includes addressing what David is asking, not what you may think he believes based on things he didn’t say.

Randi Schimnosky
November 13th, 2007 | LINK

My apologies. So then tell me David, just how much did you complain about the civil rights act prior to it being proposed to include gays in it?

Timothy Kincaid
November 13th, 2007 | LINK

So I ask you, Timothy, how do you know that the examples you cited are constitutionally authorized?

They have passed scrutiny by the SCOTUS.

Just what does that say about me, Timothy?

To me it says that your federalism and libertarian ideals are the result of -rather than the basis for – your opposition to ENDA.

David
November 13th, 2007 | LINK

Randi,

An apology followed by a sarcastic question is no apology at all. It’s a non-apology apology.

You’ll pardon me if a don’t accept it.

David
November 13th, 2007 | LINK

Timothy,

Being given a pass by the Supreme Court is what tells you something is constitutionally proper?

Imagine someone tells you that the Bible definitely condemns homosexuals to Hell. When you ask how he know this, he replies because Pat Robertson said so. Would you accept such a reply as having any validity? I should hope not.

Yet you have given such a reply to my question. The Supreme Court calling something constitutional does not make it so any more than the President or Congress calling it constitutional does.

The Supreme Court once denied Congress’ authority to forbid slavery in the territories despite the clear text of the Constitution. The Court ruled for years that separate but equal was fine even when it wasn’t equal.

The Supreme Court’s rulings depend on its membership. In 2000 the Supreme Court ruled that partial-birth abortion was a constitutionally protected act. Sandra Day O’Connor was replaced by Samual Alito and — presto! — partial-birth abortion is no longer a constitutional right.

Is this the institution to which you wish to surrender the fundamental law of the United States?

It has been a week since I asked my question, and you have not given a serious, reasoned answer to it. I must conclude you have none.

It seems you don’t care whether or not federal employment measures are constitutional or not. Why not simply admit this rather than cast aspersions at me?

“To me it says that your federalism and libertarian ideals are the result of -rather than the basis for – your opposition to ENDA.”

Just what lead you to this conclusion?

Randi Schimnosky
November 14th, 2007 | LINK

Any excuse not to answer that question honestly, eh David? There was nothing sarcastic about that question, it goes to the sincerity of all the questions you pose here and that you don’t want to answer it tells us what the answer likely is – you never had any complaints about the civil rights act prior to it being proposed to add gays to it. That’s what leads me to the conclusion that “your federalism and libertarian ideals are the result of -rather than the basis for – your opposition to ENDA.”.

Randi Schimnosky
November 14th, 2007 | LINK

And David, there is no comparing the Supreme court to Pat Robertson. The supreme court is specifically charged with interpreting the constititution by the constitution itself. You can’t say the same for Pat Robertson. If you want to make a slightly more valid comparison it would be with the supreme court and the Pope and even that wouldn’t be a valid analogy because the bible doesn’t charge the pople with its interpretation. Most Christians are Catholic and most Christians agree pope is the authority to interpret the bible itself. In both cases the documents can be ambiguous or contradictory and disputes will arise as to what is meant – that’s why there are thousands of flavours of Christianity.

Once again, just how much did you complain about the civil rights act prior to it being proposed to include gays in it?

Timothy Kincaid
November 14th, 2007 | LINK

It seems you don’t care whether or not federal employment measures are constitutional or not. Why not simply admit this rather than cast aspersions at me?

ENDA is neither more nor less constitutionally allowable than the Civil Rights Act of 1964. If you want to debate theories about constitutionality in general, call a buddy and go have some beers. I’m not interested.

“To me it says that your federalism and libertarian ideals are the result of -rather than the basis for – your opposition to ENDA.”

Just what lead you to this conclusion?

Because it appears that your objections to non-discrimination employment law were discovered after they were broadened to include sexual orientation. If indeed this is a federalist issue, then you of course support non-discrimination laws in California, for example.

E.J. McGuane
November 27th, 2007 | LINK

please help me.. I’ve worked for kaiser perm. for 6 yrs. they[kaiser] now have gotten wind of me being gay.it has been nothing but a hostle work enviorment, met out in the parking lot pushed around by younger coworkers, fag and worthless garbage, words and actions cut deep. NO ONE will help me stop this hate, not my union, human resources or kaiser. I need my job!!! but an unsafe work enviorment makes me scared to go to work. I have a mortage and responsibilities to myself my partner and community. is their anyone out there, that can HELP me stop this hate.. oh god please help me!!!!!

Ken R
November 27th, 2007 | LINK

E.J. McGuane,

Contact your local Gay Community Center. They may refer you to someone that may help you. I’m not sure what state you are in but a Gay Community Center may help start the process of resolving this issue.

I’m a bit surprised that Kaiser Perm doesn’t have a non-discrimination policy when it come to harassment in the work place for gays. Or does it, and no one is enforcing it?

Blessings,

Ken R

Jason
November 27th, 2007 | LINK

EJ,

Lamda Legal, ACLU, and possibly the Southern Poverty Law Center are your best bets.

Joel
November 27th, 2007 | LINK

EJ… I hope what you are saying is true heh, not just something to make ppl believe passing these laws is necessary.

David
November 28th, 2007 | LINK

Timothy,

I’ve been wanting to get back to you for some time. I was stopped by computer problems.

If you want to debate theories about constitutionality in general, call a buddy and go have some beers. I’m not interested.

Charming. At least you have now admitted you don’t care about the actual constitutionality of such laws, albeit in a round-about fashion.

it appears that your objections to non-discrimination employment law were discovered after they were broadened to include sexual orientation.

You, of course, haven’t the slightest evidence of this. When Jim Burroway asked people to address “what David is asking, not what you may think he believes based on things he didn’t say,” you apparently thought that the pronoun “everyone” didn’t apply to you.

If indeed this is a federalist issue, then you of course support non-discrimination laws in California…

You earlier assumed I have libertarian ideals. Now you assume that my federalist concerns must preclude such ideals. Are you trying to set some sort of trap here? (Federalist + Libertarian = Anti-Gay) Or are you just trying to make me crazy?

Actually, what I’d really like to know is just when you became so nasty.

You are not upholding Jim’s stated principles and purposes for this site when you attack me for asking a question you don’t want asked.

Randi Schimnosky
November 28th, 2007 | LINK

David that you are afraid to state how much you opposed this the civil rights act prior to it being proposed to add gays to it is very telling. Once again, when and how much did you object to employment discrimination laws prior to it being proposed to add gays to it?

Timothy Kincaid
November 28th, 2007 | LINK

David,

I do not assume that you have either libertarian or federalist views. I was pointing out that your arguments were from this position but that I doubted that this was a position which you held consistently.

I don’t know if you have any philosophical viewpoint at all other than whatever will serve you in making arguments against the rights, freedoms, and equality of gay citizens. But perhaps I’m wrong.

David
November 29th, 2007 | LINK

Timothy,

Well, finally. You finally admit that you don’t know what my philosophy is regarding employment laws. At least that’s something — even though you can’t bring yourself to fully admit you shouldn’t have assumed my viewpoint was “whatever will serve [me] in making arguments against the rights, freedoms, and equality of gay citizens.” You only say you might’ve been wrong.

You were plenty wrong, Timothy. On 18 October, on this very website, I asked why the advertising branch chief for the Army National Guard said that GLEE.COM

David
November 29th, 2007 | LINK

didn’t meet the military’s moral standards. Back in August I wrote to you and Jim to encourage you to mention the way Patrick Atkin’s religious bigot parents were treating him like an child. And I’m on the mailing list of the SLDN. Would any of this be so iff I were the sort of fellow you presumed I was all during this dialogue?

I gave you my reason for asking my original question:

I worry about the way people’s policy desires overule something all citizens should share: a desire for constitutional governance.

You clearly do not share my concern. However, this did not give you just cause to attribute ulterior motives to me.

I had previously thought you were someone with whom I and others could engage in reasoned discussion. I must now doubt this, which is very sad.

You are a contributor to a site that wants to promote civil communication on gay issues. Remember that the next time someone asks a question, whether you’d prefer that question be asked or not.

David
November 29th, 2007 | LINK

Randi,

Do you not get it? Do you not recognize it when you are being ignored? I told you I didn’t accept your apology.

I doubt you’d believe any answer I gave to your question about these laws. In any event, if you want questions answered you’re going to have to act like someone who deserves to have me answer his questions.

For starters you can stop questioning my sincerity based on what “you may think [I believe] based on things [I] didn’t say.”

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