Rules Are for Schmucks: Getting ENDA Right

Until recently, Mark Zmuda was the assistant principal at Seattle’s Eastside Catholic High School. A few months after the citizens of the state of Washington voted in a referendum to allow same-sex marriage, Zmuda and his long-time male partner were legally married. Fellow teachers ratted him out to the archdiocese, and in December he was summarily fired.

There’s no issue with his job performance. He was explicitly fired for marrying another man. He was told that if he would just get a divorce, he could keep his job. The irony is exquisite—a church that is bitterly opposed to divorce orders its employee to get a divorce.

Zmuda’s television interviews present a highly appealing figure who displays compassion, humility, and sophistication that is reminiscent of John Glenn. If you want to soften the hearts of bigots, this fellow is the right person for the job. It’s hard to watch him without thinking “Gee, all this guy wants to do is earn a living. He’s not confronting anybody. Why are they picking on him?”

Unless, of course, you’ve been brainwashed with the idea that the “Spirit in the Sky” has deemed Mark Zmuda an abomination.

News junkies will say, “Aha! That’s exactly why we need to pass ENDA!” That’s the Employment Non-Discrimination Act that’s been bouncing around Congress in one form or another since 1994 that would extend many of the employment discrimination protections of the Civil Rights Act of 1964 to gay men like Zmuda and other LGBT Americans. ENDA finally passed the Senate for the first time last fall (and will pass the Republican House when hell freezes over—but that’s another story.)

But they would be wrong. ENDA would do nothing at all for Mark Zmuda, or for the dozen other LGBT Americans fired by Catholic institutions over the past couple of years. (One woman was fired shortly after her mother’s funeral, when her female partner’s name was listed in the obituary notice.) That’s because the powerful God expert lobby successfully inserted in the text of ENDA a gaping loophole for religious employers, like Catholic schools, who will continue to be free to fire anyone they want for marrying someone they don’t like.

The lobbyists didn’t have to break a sweat getting this done. Our laws are riddled with exceptions for religious employers, in everything from the Civil Rights Act of 1964 to the Affordable Care Act (Obamacare) of 2010. In fact, the biggest fight on the Senate floor when ENDA was passed last November was over an amendment to expand the religious employer exemption dramatically, to the point where it could arguably cover almost any employer who wanted to use it. The amendment narrowly lost—but few seriously questioned why there was a religious exemption at all.

Suppose a non-religious person doesn’t like gay people. Maybe because he was abused as a child, maybe because he believes statistics thrown around by the Christian right about greater drug use among gays, maybe because his parents didn’t like them and he respects his parents. Whatever—he just doesn’t like them, and he’s not going to hire them. ENDA, when it ultimately becomes law (which it will), essentially says “Too bad. Like whomever you want, but our society will function better if you ignore sexual preference in your hiring decisions, just like you have to ignore race, so that’s what you have to do.”

But if the same bigot suddenly gets religion (or a lawyer), and says, “I’m firing that f#@!ot because the Good Book tells me so,” should that be different?

The drafters of these laws are willing to compromise, to throw Mark Zmuda under the bus in order to win protections for the majority of employees who work for non-religious employers. Maybe they’re right. Maybe that’s the politically expedient thing to do. Maybe it’s only a matter of time until we get to “liberty and justice for all.” I would note, though, that the religious exemption in the Civil Rights Act of 1964 has been around for a decade longer than most Americans have been alive, and shows no signs of fading away. Wouldn’t it be better to get ENDA right the first time?

Click here to read all of Luis Granados’ Rules Are for Schmucks series.

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