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Executive Summary #2317 on Religion and Civil Society and Civil Society

September 18, 2009

Executive Summary: ENDA and the Path to Same-Sex Marriage

By

Individuals who support marriage as the union of husband and wife have strong reasons to be concerned about nondiscrimination proposals like the Employment Non-Discrimination Act (ENDA). ENDA would elevate sexual orientation to a pro­tected status under workplace nondiscrimination laws. Proponents often argue that ENDA and simi­lar laws at the state and local levels are focused exclusively on workplace issues, but a large body of evidence suggests that such legislation would also be viewed as, and in many cases expressly intended to be, a significant step toward redefining marriage to include homosexual unions.

This evidence includes substantial material from sources that openly favor same-sex marriage. Legal scholars who support marriage redefinition have described legislation like ENDA as a key step on the "incremental" path to same-sex marriage. Same-sex marriage advocates have observed that intermediate measures like sexual orientation nondiscrimination laws can "help[] bring marriage equality closer." And lawyers challenging traditional marriage poli­cies in court have cited nondiscrimination laws in arguing that defining marriage as the union of hus­band and wife is "utterly irrational" and constitu­tionally "suspect."

Furthermore, laws like ENDA have already proved to be an important step toward legal recog­nition for homosexual unions in several states throughout the country. In states including Ver­mont, Massachusetts, New Jersey, New York, Cali­fornia, Connecticut, and Iowa, courts have cited sexual orientation nondiscrimination laws in deci­sions mandating same-sex marriage or some other form of legal recognition for homosexual unions. And no state has legislatively redefined marriage without first enacting a sexual orientation nondis­crimination law.

Lawmakers who object to proposals like ENDA on the ground they could lead to same-sex marriage might be pressured to drop their objection in exchange for explicit statutory language stating that such legislation should not be construed to support same-sex marriage. But history shows that such safeguards can be ineffective. In Massachusetts, Connecticut, and Iowa, for example, where law­makers clarified that sexual orientation nondiscrim­ination laws should not be construed to allow same-sex marriage, courts redefining marriage nonethe­less cited nondiscrimination laws.

There is no question that unjust discrimination should be opposed in every instance. It is also true, however, that this principle does not automatically lead to support for legislation that would elevate sexual orientation to a protected status like race. Indeed, no matter what one thinks about homosex­uality and same-sex marriage, there are several rea­sons to be concerned about nondiscrimination laws that would govern the conduct of private citizens.

Whatever other concerns might exist, however, individuals may also be concerned about proposals like ENDA on the ground that they would advance public policy along the path to same-sex marriage. Gay-rights activists have openly stated that mea­sures like ENDA are an important step toward the more radical goal of marriage redefinition. And an established history of judicial and political activism demonstrates just how effective such a "step-by-step" strategy can be. Given this evidence, individu­als firmly opposed to redefining marriage have solid grounds to be concerned about local, state, and fed­eral nondiscrimination laws like ENDA.

Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.

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