- Professor John Eastman, Chapman Law
- Professor Fred Smith, California-Berkeley Law
A bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not.
Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential.
There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions.
On August 22, the New Mexico Supreme Court ruled in Elane Photography v. Willock that the First Amendment doesn't protect a photographer's right to decline to take pictures of a same-sex wedding ceremony against the requirements of the state's Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. The case perfectly illustrates the tension between the ideals of non-discrimination and individual freedom. Join us as our expert discusses both sides of the issue.
On June 26th, the U.S. Supreme Court decided two same sex marriage cases: the Proposition 8 (Hollingsworth v. Perry) and Defense of Marriage Act (United States v. Windsor) cases. Please listen as our experts discuss the decisions and their implications in this previously recorded call.