The Majority’s ENDA Problem: Freedom of Religion, Meet Free Flow of Litigation

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  • 09/21/2022

It goes without saying the authors of our nation’s founding document understood better than most that freedom to practice one’s religion represented one of the most fundamental, most “inalienable” rights bestowed upon us by our Creator.
It was, after all, in pursuit of that freedom that led our ancestors to come to, settle in, and eventually found America in the first place. And it’s why our Founders made sure to include the free exercise of religion among the first rights they included in the U.S. Constitution.
But while the founders saw the Constitution as a means of ensuring religious freedom was protected on all levels, and by all reaches, of the federal government, a piece of legislation the House may very well consider this afternoon - innocently named the Employment Non-Discrimination Act (ENDA) - would actually have the effect of rolling back these protections, depending on where you happen to work. Perhaps even worse, it deliberately sets out to create a constitutional conflict between one’s right to religious freedom, and another’s right to sue you for practicing it.
The inherent tension this bill would create is not difficult to foresee in practice. Say, for instance, you chose to keep handy a Bible at your work station, and perhaps even display in your cubicle a verse from the sacred text you find particularly meaningful. The legal question this legislation creates is simple: Can one or more of your co-workers - finding passages relating to homosexuality in the Bible morally objectionable - bring suit against you and your employer on the grounds the mere presence of religious symbology constitutes a “hostile workplace” in which they’re being forced to work?
The answer, it seems, depends more on where you work than whether or not the Bible’s position on your desk is deemed offensive. Employees, for example, at Southwest Baptist University in Bolivar, Mo. - an institution of which I had the honor of serving as president before I came to Congress - would be exempt from the standards set forth in this legislation.  
But employees of either a Christian bookstore or a Muslim bookstore would be granted no such dispensation - potentially being forced to choose between upholding the faith traditions on which they are based and upon which they acquire customers, and complying with a law that says the free exercise of religion can be abrogated at the whim of the Congress.  In a society where the secular elites hold the concept of “separation of church and state” as sacrosanct, it seems strange that so many in Congress hold so few objections to the idea of the federal government involving itself directly in matters of such religious significance.  
But not to worry. We’re reminded by the majority in Congress that any and all questions of legal concern arising from this legislation can be settled in court. And you can be assured there would be plenty of activity. Because by advancing legislation that creates an entirely new class of protected freedoms (the freedom to claim discrimination on the basis of sexual orientation) outside existing Title VII law, Democrats are putting those newly established freedoms on a collision course with classes of protected freedoms that already exist - of which freedom of religious expression is a poignant example.
The inevitable upshot of pitting two classes of people against each other - one protected by the Constitution, the other through congressional fiat - is litigation. Loads of it. And depending on who is sitting on the bench that day, and in what state he or she happens to be sitting, your freedom to practice religion could be greatly impinged. So much so that you may lose your job because of it.
One thing, however, is certain: Passage of this bill would effectively create a brand new market for litigation, and set up the opportunity for billions of dollars for trial lawyers.  Another bill, another Democratic payback to their special interests, more burdens on American small businesses, more attempts to limit religious speech - well, just another day under this Democratic Congress.    


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