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Boehner rejects ENDA

From Reuters:

House of Representatives Speaker John Boehner on Monday opposed a bill to ban workplace discrimination based on sexual orientation and gender identity, dimming the chances of the White House-backed measure becoming law.

“The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” Boehner’s spokesman Michael Steel said in a statement.

Your thoughts on this topic are welcome in the comments. Here are mine. I agree that ENDA should be rejected, for the following reasons.

CA has had an anti-gay discrimination law for decades, which I supported, only then to see it mis-used. Without getting into details, I saw one friend use it to shake down employer after employer every couple of years, as each new one found out that he wasn’t a very good employee (regardless of his being gay). I also saw a good person suffer an anti-gay discrimination lawsuit whose allegations were wholly, boldly invented. (The suit failed in the end, but the lengthy process itself was a form of harm.)

Perhaps there are real cases of discrimination against good employees that these laws help to redress; but I’ve seen more that these laws empower lawyers – and grifters, liars and con artists. The broader point would be that these laws violate rights to property and to free association.

Just as an employee should be free to quit and move on to any employer who may want them, an employer should be free to fire any employee who works for them. The employer-employee relationship should be a private relationship between consenting adults; a relationship that either side can end at will. Laws which burden/restrict that are laws which violate people’s rights, opening the door to injustices of the kind I’ve outlined (and more).

Now, the reasons for opposing anti-discrimination laws (which might better be called “lawyer empowerment laws”) that I’ve just laid out, are not gay-specific. They work against these laws in general. Catching onto that, some people will respond: OK, but we do have these laws covering race, gender, religion, national origin, age, etc…why not add sexual orientation? As a longtime believer in equality-before-the-law for gays and straights, I don’t think that’s a terrible response. I am sympathetic to it.

But I keep coming back to the fact that two wrongs don’t make a right. That we have these laws to begin with, is a wrong; and we won’t escape the wrongness by broadening these laws to cover more and more categories. We should be looking, if anything, to reduce the categories.

RELATED (from Dan):  I had been planning on post on ENDA largely along the lines of the arguments Walter Olson makes here.  Just read the whole thing.

(And from Jeff): The heart of Olson’s argument is his last paragraph:

…At what point do we say no to future demands that protected-group status be accorded to employees based on political and controversial systems of belief, physical appearance (the “looksism” issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few…? If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

Great point. ENDA is, in the end, just the next small step in the Left’s incremental strategy to make a society where no economic actions are private or unfettered; the politicians, judges, lawyers and bureaucrats rule all.



  1. The libertarian argument against these laws is so simple. Yeah, discrimination is bad, byt a big, micromanaging Government is worse. So much worse.

    Anti-gay discrimination is pretty much anecdotal at this point. It’s Government abuses of power that are pervasive.

    Comment by V the K — November 5, 2013 @ 1:55 pm - November 5, 2013

  2. The fact is that the effects of this law are not unknowable. There are already jurisdictions that have this law in place and many that do not. The fact that some jurisdictions have it already is proof that the federal govt does not need to get involved at all. States and localities are perfectly capable of passing the laws they need and suffer the consequences of it.

    Comment by Professor Hale — November 5, 2013 @ 2:00 pm - November 5, 2013

  3. I’m not libertarian –though I was one for year back in 2000 🙂 — but having watched the 50-year unfolding of the “anti-discrimination” obsession from its inception til now, if I were Consul For Life of the New American Commonwealth, I’d repeal every single law of that kind.

    Under the guise of “justice” what has developed is the steady strangulation of freedom by a State which has now replaced the Church as the Supreme Arbitor of our moral lives, almost even of our thoughts.

    On Planet Earth, every political arrangement is a trade-off between several goods and many evils. I’d rather have a world in which transgenders have a bathroom problem than one (we have now) where small business photographers are financially savaged for declining to film a lesbian wedding.

    Talk about the road to serfdom.

    Comment by EssEm — November 5, 2013 @ 3:25 pm - November 5, 2013

  4. Of the lawyers, by the lawyers, for the lawyers.

    Comment by Ignatius — November 5, 2013 @ 4:03 pm - November 5, 2013

  5. First of all, in the spirit of full disclosure, I’m generally indifferent to ENDA. Unlike DADT, the list of people affected by ENDAs absence is short. Heck, there isn’t even the token ‘poster child’ for ENDAs implementation. While it could be argued that this is because people are staying closeted at work, without at least some quantifiable numbers, it’s difficult to gauge the urgency of ENDA. That’s not to say that, at the same time, there aren’t people out there being denied the basic right to earn their ‘daily bread’; so I DO see the benefits of ENDA.

    But to respond to your first request, thoughts on Boehner’s comment; I think the speaker contradicts himself with the follow up statement, ‘We have always believed this is covered by existing law.’ Without knowing the specific law(s) to which he is referring, it seems he is saying that enacting ENDA would cause problems, but we already have ENDA by another name (and everything’s fine). It can’t be both. But this is a minor quibble.

    My two biggest ‘issues’ regarding ENDA are:

    1) Why does the political party most vocal about ENDA always seek its passage when it has no hope of doing so? (Rhetorical question one)

    2) Why does the political party most vocal against ENDA always seek to bar a certain group(s) from coverage of an excising law(s) under the rational that it’s bad for business, rather than being as vocal to overturn the law entirely? (Rhetorical question two)

    In other words, if ENDA laws are bad (the ‘wrong’ that you allude to, Jeff), then they are wrong for everyone, if they are good, then they are good for everyone.

    I understand your chagrin over the abuse of anti-gay discrimination laws you’ve supported. But I don’t think that is always the best way to judge enacted legislation. Show me an existing law, and I’ll show you a group of people who have abused that law. That’s doesn’t mean that the law is bad; it just once again demonstrates that certain individuals are bad. Now of course, some legislation invites abuse, and ENDA might be such legislation, without the numbers to see if its benefits would outweigh its potential for abuse, we’re at something of an impasse.

    Overall I think ENDA has become a legislative dinosaur even before it has gotten a chance to get up and walk. Now it’s just a bargaining chip. At one time ENDA may have been a critical piece of law; however society has moved and is continuing to move toward its own ‘ENDA’ organically.

    Comment by SMG — November 5, 2013 @ 4:38 pm - November 5, 2013

  6. if [non-discrimination] laws are bad…then they are wrong for everyone, if they are good, then they are good for everyone.

    Exactly: They are wrong for all protected categories. As I noted, these laws are basically lawyer-empowerment laws. As others noted, they also contribute to government micro-managing business, and to the culture of ‘victim’ thinking among minority groups. I say, repeal them all; and failing that, at least trim the categories back to just race or something.

    Comment by ILoveCapitalism — November 5, 2013 @ 6:10 pm - November 5, 2013

  7. so do you support the removal of all non-discrimination laws (for women, blacks, etc.) or do you just want no legal protections for gay people ?

    Comment by el polacko — November 5, 2013 @ 7:24 pm - November 5, 2013

  8. ep, read comment #6…I just said, right there.

    Comment by ILoveCapitalism — November 5, 2013 @ 7:55 pm - November 5, 2013

  9. so do you support the removal of all non-discrimination laws (for women, blacks, etc.) or do you just want no legal protections for gay people ?

    Comment by el polacko — November 5, 2013 @ 7:24 pm – November 5, 2013

    You know, el polacko, that’s interesting.

    You state that these so-called “non-discrimination” laws offer protections to specific groups — “women, blacks, etc.” and gays.

    Now, in theory, these laws are written on the basis of characteristics – skin color, gender, sexual orientation.

    What you have inadvertently admitted, however, is that these laws do not protect ALL people from discrimination based on their skin color, gender, or sexual orientation; instead, they only protect people who have a specific PREFERRED skin color, gender, or sexual orientation. They only protect women, not men; blacks, not white people; and gay, not straight people.

    These laws, as you have admitted, enshrine into law a special class designation for people with specific characteristics. Moreover, they prevent any application whatsoever of equal treatment; a gay supervisor, for example, is perfectly allowed to fire a person for being straight, but not the opposite. These laws create special protected statuses under law that are not equally offered to a person of a different skin color, gender, or sexual orientation.

    Which makes them profoundly discriminatory.

    If you wish these laws to exist, you need to strip out the protected classes and make it clear that they bar ALL forms of discrimination — a white person may sue for racial discrimination, a man may sue for sexual harassment and gender discrimination, and a straight person may sue for sexual orientation discrimination — or you cannot realistically and truthfully state that these laws are “non-discriminatory”.

    My opinion: they are not, and they have not been since the grievance industry developed. These laws are being demanded, not because gays and lesbians are being discriminated against, but because gays and lesbians want to be allowed to discriminate with impunity and demand special treatment based on sexual orientation rather than merit.

    Which makes them profoundly discriminatory.

    Comment by North Dallas Thirty — November 6, 2013 @ 10:09 am - November 6, 2013

  10. Opposing a law on the principle of opposing the overuse of Government power is not the same as endorsing discrimination.

    Comment by V the K — November 7, 2013 @ 9:19 am - November 7, 2013

  11. If you’re a homophobe, don’t hide it. I want to know so I can make the choice to not work for you or not patronize your business.

    Comment by BigJ — November 13, 2013 @ 4:56 pm - November 13, 2013

  12. North Dallas Thirty:

    I actually have a friend who wanted to start an MRA Club on his college campus. When he stood before the college administration to tell them why they should approve it, he brought up how there are Women’s Rights Clubs, but none for men. He also brought up how the college is not supposed to discriminate based on gender. After many hours of intensive debate, he WON! The MRA Club is now a recognized club at his school.

    So non-discrimination policies CAN work in anybody’s favor.

    Comment by Paul — November 14, 2013 @ 12:18 am - November 14, 2013

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