Culture Wars and Protected Classes: Gay Marriage vs. Religion

We’re all familiar with the principal protected classes under federal employment law: race, color, sex or gender, pregnancy, national origin, religion, age and disability. Some state statutes and municipal ordinances add others: sexual orientation, gender identity, marital status, family status, creed, and ancestry, just to name a few.

The culture wars are more difficult to articulate, but they’re no less real. These wars usually involve political conflict over cultural or personal values, like: abortion, gay marriage, gun rights, separation of church and state, privacy, and the environment, just to name a few. Sometimes, the culture wars and the protected classes merge — or perhaps clash.

A recent non-employment event brought this to the forefront when Miss California, Carrie Prejean, lost the Miss USA beauty pageant because of an answer she gave to a question about gay marriage. (Washington Post and Los Angeles Times) Miss North Carolina won the pageant. Miss California was first runner-up.

One of the judges, Perez Hilton, a gay blogger, asked Prejean whether she believed in gay marriage. Prejean responded: “We live in a land where you can choose same-sex marriage . . . . I believe that a marriage should be between a man and a woman. No offense to anybody out there, but that’s how I was raised.” Prejean said she knew she had lost when she gave that answer, but she had to be honest to herself and her faith. Hilton confirmed Prejean’s conclusion.

As the culture wars go, Prejean’s answer to Perez’s question was mild, if not balanced and open-minded. It wasn’t, however, politically correct. It would’ve been, only if she were being judged by a group of Roman Catholic bishops, evangelical Christians, or right-wing Republicans. One does have freedom of speech and religion in this country — sometimes.

Before long, we should find the Miss USA scenario playing out in the workplace. That’s because the Employment Non-Discrimination Act (ENDA) is pending before Congress and is likely to pass in some form, given our new administration in the White House and our new Congress. ENDA would add sexual orientation to the list of protected classes under federal law. Some would like to add transgender status and bisexuality as protected classes under ENDA, and until ENDA supporters can agree on whether to leave ENDA as is or add these other classes, the bill is temporarily on hold. In my opinion, it would pass right now in its present form and might pass with the added classes. The point is that some aspect of sexual orientation is going to be added as a protected class.

Even now, most employers don’t ask questions about sexual orientation or gay marriage. Under federal law (as it stands right now), however, it wouldn’t be unlawful to do so and to take it into account in making an employment decision. Let’s fast forward several months when both religion and sexual orientation will be protected classes under federal law. It would presumably be unlawful to ask the question Miss California was asked.

Before getting too far ahead of ourselves, it might be unlawful to ask the question now, because it arguably has the effect of inquiring into one’s religious beliefs. It’s possible to do that now, but only if an applicant is applying for a job in a religious institution holding as one of its fundamental tenets a pro or con view on gay marriage. Most employers aren’t religious institutions.

Once ENDA is law and applicable to a wide variety of employers, we’ll have an employment law conundrum for sure. Except for religious institutions, employers won’t be able to ask sexual orientation, gay marriage, and perhaps other culture war questions that also fall under the umbrella of religion.

So, if Miss California were applying for a job in a manufacturing facility and it becomes known that she, as a matter of religious faith, believes gay marriage to be wrong, could the employer decide not to hire her because she would be working with or supervising a number of gay and lesbian employees or because the employer has a history of supporting gay rights? Presumably not. Could an employer decide not to hire a partner in a same-sex marriage because he would be working with or supervising a number of conservative Christians or because the employer has always operated on the basis of conservative Christian principles? Presumably not. Thus, the possible coming conundrum.

Does one protected class trump another? Or do we even get to that question if employers simply stay away from questions about either class? Somehow, I don’t think it’ll be that easy. We’ll see how easy the justices on the U.S. Supreme Court find it to be, once the question is presented to them, as it surely will be sooner or later.

1. 

   LKS says:

   April 29, 2009 at 9:11 am

   I’m a proponent of ‘don’t ask, don’t tell’.

   What someone (legally) does in the privacy of their own home should have no bearing on their eligibility for a job. All this new legislation will do is open up an avenue for new litigation.

   I understand the need to address ‘visible’ attributes (sex, race, etc.) but where do we draw the line? People who like the color blue are protected but people who like the color red aren’t?
2. 

   Paul Weatherhead says:

   April 29, 2009 at 10:42 am

   I seem to recall that presidential candidate Obama gave the same answer as Miss California during the campaign – that marriage should be between a man and a woman. So why didn’t the public get outraged about Obama’s “non-PC” response as a candidate?

   By the way, I am not in “a group of Roman Catholic bishops, evangelical Christians, or right-wing Republicans”, but I thought she gave a perfectly fine answer to the question.

   Ironically, blogger Hilton’s ranting on tape after the competition was reminiscent of the anti-homosexual intolerance of the Nazis in pre-WWII Germany.
3. 

   NaeNae55 says:

   May 1, 2009 at 9:24 am

   I didn’t see the pageant, but I saw Hilton interviewed the next morning. He was asked if we could expect the pageant to become political and contestants crowned based upon their politcail views. He said absolutely not as it wasn’t a political outlet. I found this confusing as it seems to me that the question he asked was very political. I mean, why else call her answer politically incorrect?

   Whether you agree or disagree with her answer, he is the one who smells after this one in my book.
4. 

   John Phillips says:

   May 1, 2009 at 4:46 pm

   LKS, Paul and Nae,

   Thanks for your thoughtful input.

   I’m not advocating that a Miss California question be asked in the workplace, just looking ahead and trying to be realistic about what’s likely to happen. I too thought Miss California’s answer to a politically charged question designed to make everyone uncomfortable was fine. If there were any doubt about Hilton’s odor, all doubt has now been removed.

   Thanks again.

   John