The Magazine


Sep 22, 1997, Vol. 3, No. 02 • By ROGER CLEGG
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LAST YEAR, A BILL TO PROHIBIT private employers from discriminating against homosexuals was defeated in the Senate by a narrow 50-49 vote. President Clinton had endorsed the bill. A top item on the gay agenda, the Employment Non-Discrimination Act (ENDA) is back this year. The president has reaffirmed his support, and the bill has a number of Republican sponsors, including senators Alfonse D'Amato and James Jeffords (the bill is before Jeffords's Labor Committee) and representative Christopher Shays. Al Gore and Richard Gephardt support it, too, as does the powerful Leadership Conference on Civil Rights. The bill's fate will say a lot about whether the era of big government is really over.

ENDA's proponents are making a simple argument: (a) Discrimination against homosexuals is bigotry, and therefore (b) there should be a federal law against it. This argument contains several mistakes, implicit and explicit.

The first is the assumption that Congress has the power to pass such a bill. The Constitution grants Congress only certain enumerated powers. In 1964, when it banned employment discrimination on the basis of race, ethnicity, religion, and sex in private employment, Congress pointed to two sources of authority: the Commerce Clause and the Fourteenth Amendment. So does ENDA. But the Fourteenth Amendment gives Congress authority to act against state governments, not private businesses. As for the Commerce Clause, it was certainly arguable in 1964 that systemic discrimination against blacks in large parts of the country substantially affected interstate commerce. It was plausible that discrimination against women and ethnic minorities did so, too; less so religious discrimination. But is it credible that, in 1997, discrimination against homosexuals has a substantial effect on interstate commerce? No -- and Congress should not pass laws unless it believes it has the authority to do so.

The second flaw in the pro-ENDA argument is its apparent assumption that Congress is obliged to act whenever there is a wrong to be righted. But discrimination against homosexuals in private employment is not the sort of problem that cries out for a national solution. Is there a wholesale refusal in the American marketplace to hire, promote, and refrain from firing homosexuals? Are state and local governments powerless to take action? Are homosexuals themselves without recourse, either individually or collectively? The answer to all these questions is no. There is unlikely to be a pervasive problem if, as Karlyn Bowman of the American Enterprise Institute notes, polls show that 80 percent of Americans believe homosexuals should not be discriminated against in the workplace. Eleven states have already banned such discrimination, according to Fortune magazine; and corporate America- including Disney, IBM, Coors, Ford, and hundreds of other companies -- has been quite accommodating to gays, without any intervention by the federal government.

A third problem involves an increasingly forgotten principle: Absent extraordinary circumstances, Congress should not tell people how to use their property and run their businesses. Here again, proponents are likely to argue that if this principle did not stop Congress from passing the Civil Rights Act of 1964, it should not prevent passage of ENDA. Yet there is some point at which the federal government must stop micromanaging private employers' personnel practices and let them hire whom they want. Where we draw the line determines whether freedom of association and the right to control one's property are the exception or the rule.

Racial discrimination presented an extraordinary situation justifying departure from free-market presumptions. It was widespread, blatant, and often backed by state and local laws; it was irrational and dictated by no religious or moral convictions; it was a historic problem, national in scope, and clearly not susceptible to local resolution. Discrimination against homosexuals is none of these.

What it can be, however, is an expression of the fact that homosexual activity -- which the bill will inevitably be construed to protect -- violates the deeply held religious beliefs of millions of Americans. How are they to teach their children that behavior is sinful when the federal government protects it? For millions of others, homosexual behavior is undesirable and linked to a variety of social pathologies. And still others are uncomfortable with placing homosexuals in certain positions, such as Boy Scout leader or schoolteacher. What is the relevance of all this for law and government?