ENDA is not a violation of the fundies First Amendment rights

The Wife heard an interesting tid bit on the radio that Focus on the Family is crying that ENDA (Employee Non-Discrimination Act) violates their First Amendment Rights to freedom of religion. They've been griping about this for some time actually. Apparently Focus on the Family is too busy gay bashing to really understand what, precisely, the First Amendment protects. The short answer is it doesn't completely protect you in the workplace. The far right attempted to use this same tired argument against racial discrimination and sexual harassment ... it didn't work.

I spoke to the Paternal Unit, nationally recognized free speech expert Paul McMasters, who didn't use all the profanity I wanted to but basically agreed that Focus on the Family is way off base. He pointed me in the direction of numerous articles showing how a blogger's free speech OUTSIDE the workplace could be controlled by his or her employer. Read, you can get fired for what you say publicly if your boss doesn't like it.

Now, let's do a little check up here: the government can make no law governing your speech or religious practices. It's a bit more complicated when it comes to your boss. Especially if your boss isn't the Federal Government.

Dear Old Dad pointed me to this article, by lawyer David Hudson, on religious freedom in the workplace. The important take aways from the article are as follows:

*Public employees have the protections of the First Amendment and Title VII of the Civil Rights Act of 1964, the major federal anti-discrimination law that covers virtually all public and private employers with 15 or more full-time employees. Employees in the executive branch of the federal government are also covered by the "White House Guidelines on Religious Exercise and Religious Expression in the Federal Workplace."

*Title VII generally prohibits an employer from discriminating against employees on the basis of race, color, sex, national origin or religion. Under Title VII, an employer must reasonably accommodate an employee’s religion unless doing so would create an “undue hardship.”

*The First Amendment's free-speech and free-exercises clause also protect public employees’ religious speech. The free-exercise clause provides that the government may not prevent individuals from freely practicing their religious faith. Public employees do not forfeit all of their free-exercise rights when they take a government job. If a government employer or workplace rule targets an employee’s religious speech and causes a substantial burden on his or her religious faith, it can be justified only if the employer shows a compelling interest. More often employer policies do not intentionally target an employee’s religious faith but have an incidental impact.

*In litigation, many public employers assert that they silenced an employee’s religious expression to avoid an establishment-clause conflict. The argument is that if the employer allows employees to speak about their religious faith on the job, the public will believe that the employer is sanctioning or endorsing the religious views.

You'll note all of that pertains to public employers. Private sector employers can have even more restrictions on their employees behavior in the workplace. They cannot, however, discriminate on the basis of race, color, sex or national origin. ENDA simply aims to add sexual orientation and gender identity to that.

If you attempted to file suit against your employer because you felt that your boss's hiring of a Native American, Latino, African-American, fill in the ethnicity here person, violated your First Amendment rights you'd be laughed out of court. Likewise, while your boss can't keep you from going to church he or she can regulate what you say about it in the office.

Gay people in the workforce are not going to keep anyone from praying or going to church. Therefore they really can't hurt anyone's religious freedoms. The Focus on the Family folks are still entitled to their "gay is evil" opinion but they won't be able use it to discriminate against the drag queen in the cube next to them.