‘Don't Not Ask - and Do Tell'

It would — if it passes — be the first time the Congress of the United States has ever asked a church to issue an edict. And not only a church but every religious institution that wants to protect its doctrine in respect of homosexuality. This is a bizarre aspect of the Employment Non-Discrimination Act, which is working its way through the legislative process in Washington as H.R. 2015 and would be the first federal law to forbid employment discrimination on the basis of sexual orientation and gender identity.

This newspaper supports the broad goal of the law, but we also share the concerns outlined in a letter to the Congress from Union of Orthodox Jewish Congregations of America, the United States Conference of Catholic Bishops, and the General Conference of Seventh Day Adventists, on which our Joseph Goldstein reports today on page one. They fear a violation of constitutionally protected religious rights every bit as significant as the discrimination the law is trying to end. The way H.R. 2015 is shaping up, the so-called religious exemption has been narrowing.

In the latest version, religious institutions would have to declare their doctrine publicly in order to rank for rights that are established in the Constitution. In 2001, the proposed law said simply: "This Act shall not apply to a religious organization." This met what we like to call our "plain language" test. It's gone from the latest version of the bill. The religious exemption now proposed is so complicated, the nine justices of the Supreme Court will spend as much time figuring out exactly what it says as deciding that it is unconstitutional.

Which they would have to do. The bill will not require churches to hire gay priests or synagogues to hire gay rabbis. Or even hire gay janitors for that matter. But churches sometimes run nursing homes, soup kitchens, summer camps, and schools. What of these places? Educational institutions whose "primary purpose" is worship are classified as exempt. But what about, say, Catholic schools in which the majority of the students aren't Catholic? Can such a school decline to hire a gay math teacher? And what of the religious summer camp or church charity? Can those places decide against hiring gay counselors or social workers?

Subsection C in H.R. 2015 would require that religious organizations that do not want to hire homosexual individuals but do want to avoid lawsuits, must declare which "religious tenets" are significant. This is a roundabout way of saying that a soup kitchen operated by a certain denomination can legally refuse to hire a gay manager if the denomination has clearly proscribed homosexuality. By our reading, this bill seeks to demand that every religious sect and even every individual congregation settle once and for all what its views are on homosexuality. Call it "don't not ask — and do tell."

In our view, the right way to fix this is in the legislature, before it becomes law. That could be done by using earlier iterations of the bill that have a simple, emphatic, and broad religious exemption — and address the vast majority of cases of employment discrimination in matters of sexual orientation. Few concerns of the Founders, however, were as explicitly stated as that of protecting religious freedom in America. This no doubt arose from the fact that America was a refuge from religious persecution elsewhere. It would be a shame to introduce into our polity the kinds of religious tests the Founders of America came to this vast land to avoid.