Earlier this week, several prominent LGBT advocacy groups announced that they would no longer support the proposed Employment Non-Discrimination ACT, known as ENDA. If the U.S. House of Representatives passes ENDA, it would create legal safeguards in the workplace for gay, lesbian, and transgendered employees. The National Gay and Lesbian Task Force Action Fund led the move, with the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and Transgender Law Center later joining NGLTF’s initial statement. The groups fear that the Supreme Court’s recent decision in Hobby Lobby signals a move toward expansive religious exemptions. Consequently, the groups will now focus their efforts on securing rights for the LGBT community like those provided by Title VII of the Civil Rights Act of 1964 and the Constitution’s Equal Protection Clause.
A few months ago, I wrote about ENDA and why conservative Republicans in the House ought to pass the bill. I pointed to a novel D.C. district court ruling allowing a gay man to move forward with his Title VII employment discrimination claim, based on his status as a homosexual male. I described the differences between Title VII’s religious exemptions for employers and the much broader exemptions provided by ENDA. In my earlier piece, I wrote, “Republican Congress members should think twice about refusing to enact legislation that would provide ENDA’s key protection of religious freedom. If they fail to do so, and the push to expand the scope of Title VII in the courts continues, no such protection will exist.”
Instead of prioritizing religious freedom, social conservatives in Congress have held fast to a strident moral opposition to LGBT rights. Instead of pressing for new, democratically enacted statutory rights, many advocates of LGBT equality will increasingly double-down on judicial re-interpretation of Title VII and the Equal Protection Clause. As each side digs in, the other side digs in deeper. Workable compromises seem fewer….
The problem here, however, is not only the lack of compromise between these two polarized sides, but also the dearth of vantage points actively participating in the debate at all. Current debate in my adopted hometown of Houston, Texas illustrates this.
In May, the Houston mayor and city council passed the Houston Equal Rights Ordinance (HERO) by a vote of 11 to 6. The ordinance, pushed by Mayor Anise Parker, the nation’s first openly lesbian mayor of a major city, extended anti-discrimination protection to LGBT Houstonians. Not everyone was pleased, however. Opponents of the measure circulated a petition calling for HERO’s repeal. Although the petition’s organizers needed only 17,000 signatures to have the issue placed on the November ballot for possible repeal, they quickly secured more than 50,000.
Anticipating the November vote, the opposing sides jockey for voter support of their respective causes. Some conservative Republicans, along with Democratic African American and Hispanic church leaders, argue that HERO offends their moral values. They contend that the new law would endanger women and children by permitting male sexual predators to enter women’s public restrooms simply by claiming that they identify as female. This latter argument, advanced in other communities considering LGBT anti-discrimination laws, seems overwrought, if not downright hysterical. On the other side of the debate, Houston’s mayor and much of our city’s burgeoning creative class, one of the largest in the nation, insist that HERO enshrines in law the basic human dignities LGBT Houstonians must have in every context and that no more circumscribed measures will do.
The cries are shrill on both sides. The outcome of November’s vote on Houston’s HERO will be based on which side can inflame the most voters who already tend to agree with them. It’s a race to see whether social conservatives or social liberals get out the vote best, not a race to persuade most Houstonians in the superiority of one policy over another.
In Houston, as elsewhere, public debates over LGBT anti-discrimination laws and religious exemptions often center around the acceptance of diversity, or lack thereof, by both sides. The debates call one side to respect others’ sincerely held religious beliefs. They call on the other side to consider others’ core, often deeply personal beliefs about gender identity and sexual orientation. Yet despite this unifying theme, our public debate about the issue includes so little diversity of perspectives.
There are many more ways to frame consideration of LGBT rights and of religious freedom rights than you’d think from observing coverage of these issues in the popular media and everyday discussion. Some people oppose anti-discrimination laws, including ones like ENDA and HERO, on minimal-state grounds. Their sympathies with the LGBT community don’t bear on that principled stance. Some oppose sweeping federal legislation in this area, while having no beef with states or cities opting for such rules. Some advocate strong religious-freedom protection without themselves practicing religion. Others are deeply faithful, but don’t believe their faith requires them to oppose laws that insist on equal treatment for gays and lesbians. Some oppose recognizing gays and lesbians as members of a new protected class under the Equal Protection Clause of the Constitution, but have no quibble with enacting generous rights through legislation. Rarely do these positions receive public attention. But they should.
What good would it do to include even more perspectives on each side? After all, opponents of anti-discrimination laws who disagree on the particular reason why the laws are a bad idea would seem to just amount to more net disagreement. Likewise for more diverse justifications for such laws by their proponents. How does that get us closer to anything but a more fractured society?
Expanding the discussion beyond the current poles would likely draw more people into the debate. Currently, lots of people can’t buy into the unequivocal extension of LGBT rights and privileges at the expense of sincere religious objection or common sense on the one side, or the vitriol and paranoia about some rising pink tide of immorality at the other. Without options, those folks withdraw from the conversation. The only people left talking about the issue in the public forum tend to be intransigent zealots.
Nobody in society benefits from leaving the decision-making in the hands of people unwilling to compromise. As I noted when encouraging Republicans to embrace ENDA while they had the chance, even the uncompromising zealots themselves end up suffering in the long run.
P.S. Readers in the Houston area: join me this coming Tuesday evening at the Supreme Court Term in Review dinner and panel discussion hosted by the Houston Lawyers Chapter of the Federalist Society. I’ll be one of the panelists, along with Judge Gregg Costa of the U.S. Court of Appeals for the Fifth Circuit, Justice Jeff Brown of the Supreme Court of Texas, and Erin Busby, former clerk to Justice Stephen Breyer and current adjunct professor in UT’s Supreme Court Clinic. If you dig my column, come say “hi.” If you don’t, come just to watch me get outshone by the brighter minds and sharper wits of the rest of the participants. Either way, we all win.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at email@example.com