The National Catholic Review

The following is the text of a letter sent to members of Congress on May 19, from the USCCB, on the topic of the Employment Nondiscrimination Act (ENDA) and, in relation to that, same-sex marriage.

May 19, 2010

Dear Member of Congress:

We write to you regarding the Employment Nondiscrimination Act (ENDA), H.R. 3017, and Senate (S. 1584). Our purpose is to outline the serious concerns we have with these bills in their current form and why we cannot maintain the position of neutrality we held in 2007.

For the sake of clarity, permit us first to state two basic tenets of Catholic Church teaching on this issue. First, persons with a homosexual inclination “must be accepted with respect, compassion, and sensitivity,” and second “[u]nder no circumstances can [homosexual acts] be approved.” Catechism of the Catholic Church (“CCC”), nos. 2357-58.

Catholic teaching states that all people are created in the image and likeness of God and thus possess an innate human dignity that must be acknowledged and respected, by other persons and by law. We recognize that no one should be an object of scorn, hatred, or violence for any reason, including sexual inclination. The Church affords special concern and pastoral attention to those who experience a homosexual inclination and stands committed to avoid “[e]very sign of unjust discrimination in their regard.” CCC, no. 2358.

The Catholic Church makes an important distinction between actions and inclination. While the Church is ardently opposed to all unjust discrimination on the grounds of sexual inclination, whether homosexual or heterosexual, it does teach that all sexual acts outside of a marriage between one man and one woman are morally wrong. The Catholic Church’s teaching cannot, therefore, be equated with “unjust discrimination,” because it is based on fundamental truths about the human person and personal conduct. Homosexual conduct is categorically closed to the transmission of life, and does not reflect or respect the personal complementarity of man and woman. In contrast to sexual conduct within marriage between one man and one woman—which does serve both the good of each married person and the good of society— heterosexual and homosexual conduct outside of marriage has no claim to special protection bythe state.

Just as every other group in our society, the Catholic Church enjoys the same rights to hold to its beliefs, organize itself around them, and argue for them in the public square. This is guaranteed by our Constitution. This includes the right to teach what it holds to be the truth concerning homosexual conduct—and to act as an employer consistent with that truth—without the threat of government sanction.

The USCCB continues to oppose “unjust discrimination” against people with a homosexual inclination, but we cannot support a bill – such as ENDA in its current form – that would legally affirm and specially protect any sexual conduct outside of marriage.

Moreover, because the passage of such a bill could be used to punish as discrimination what the Catholic Church teaches, the USCCB has always sought as comprehensive a religious exemption as is achievable, in order to protect the religious freedom of the Church, and of all others who hold similar views. One partial solution to this problem is to apply Title VII’s prohibition on religious discrimination, which is already incorporated in the current version of the bill.

But this is insufficient alone, as the Title VII protection does not cover all religious employers, and recent experience teaches that even covered institutions may face government retaliation for relying on such exemptions. Without such additional protection, ENDA would be applied to jeopardize our religious freedom to live our faith and moral tenets in today’s society.

The movement to redefine marriage to include two persons of the same sex (a.k.a. same-sex “marriage”) has changed the law substantially toward that end, at both the state and federal level, and it has become increasingly clear that laws like ENDA have been instrumental to those changes.

For example, we have seen state Supreme Courts repeatedly rely on state-level ENDAs as a basis for creating a state constitutional right to same-sex “marriage.” We consider it very likely that ENDA, despite referencing DOMA, could be used for similar purposes at the federal level. The highest courts of California, Connecticut, and Iowa have declared that the traditional definition of marriage is “discriminatory” and lacking any “rational basis,” and so violates the constitutions of their respective states. Cases are now being brought in order to create a federal constitutional right to same-sex “marriage”—whether by striking down federal DOMA, or by striking down California’s Proposition 8 in federal court. If ENDA were to pass, we would expect lawyers to invoke it in federal court under the federal constitution, just as they invoked analogous state laws in state constitutional litigation. If this strategy were to succeed, it would represent a legal and moral disaster comparable in many ways to Roe v. Wade. As leaders of the Catholic Church, we have a moral obligation to oppose any law that would clearly contribute to this outcome.

These rulings also reflect a legal strategy that gay rights advocates have repeatedly andpublicly explained in scholarly articles and other media—first, secure the passage of sexual orientation antidiscrimination laws, such as ENDA, and then invoke the principle embedded within those laws as a basis for same-sex “marriage.”

In addition to ENDA’s protection of same-sex conduct, its threat to religious liberty, and its contribution to the cause of same-sex “marriage,” there are other obstacles to its passage. The bill’s treatment of “gender identity,” which was not in the 2007 bill, would have an adverse effect on privacy and associational rights of others. The bill also lacks an exemption for a “bona fide occupational qualification” (BFOQ), for those cases where it is neither unjust nor inappropriate to consider an applicant’s sexual inclination.

While we regret we cannot support ENDA for the above stated reasons, the Conference would, however, be interested in discussing legislation that would protect persons with a homosexual inclination from unjust discrimination, without protecting homosexual conduct. We therefore invite further discussion with you and your staff on how ENDA might be amended to correct the various flaws discussed in this letter.



Archbishop Joseph E. Kurtz, Archbishop of Louisville

Chairman, Ad Hoc Committee for the Defense of Marriage

Most Reverend William F. Murphy

Chairman, Committee on Domestic Justice and Human Development

Most Reverend Donald W. Wuerl, Archbishop of Washington

Chairman, Committee on Doctrine

Show Comments (53)

Comments (hide)

William Lindsey | 5/25/2010 - 1:38pm
Michael, assuming I'm the William you are addressing:
You ask why I think the USCCB addressed same-sex marriage in a document that speaks of ENDA.
My reply:
Perhaps they did so to remind us (as they state explicitly in their statement, "We recognize that no one should be an object of scorn, hatred, or violence for any reason, including sexual inclination."
Perhaps they are reminding us that the most fundamental teaching of all in the church is that God is love, and that love is what the life of discipleship is all about. 
That the energy of love is what transforms us and the world-not hate.
Anonymous | 5/25/2010 - 1:04pm
To William - 
Just want to point out that the USCCB addressed same-sex marriage in a letter that could have addressed only ENDA.  Why do you think they did that?
Terence Weldon | 5/25/2010 - 1:02pm
Here we go again. The US bishops, in their continuing determination to force their view of family on everybody else, ask for special treatment under the law - or no protection from discrimination for a group most grievously discriminated against. Their protestations that they insist on treating persons with a homosexual ''inclination' with respect while arguing against protection from discrimination against ''acts'' is playing with semantics.
The Church is fully entitled to ''teach'', as they claim, against homosexual actions as their right. But the Church also teaches the importance of conscience, and the right and obligation at times to follow conscience before external authority.It is on precisely this principle that they argue for their own exemption from the law. To practice discrimination against those who dissent in good concsience from their proclaimed views is not only a violation of fundamental principles of civil rights, it is also a violation of the Church''s own priniciples.
The repeated claim that discrimination against homosexual persons is not unjust because it accords with church teaching, simply provides an egregious justification for those who use pseudo-religious arguments as an excuse for going beyond discrimination to physical harassment, violence and even murder. Catholic bishops have used precisely the same arguments for opposing anti-discrimination legislation and for opposing anti-bullying legislation in shools: even though homophobic bullying, implicitly encouraged and supported by the bishops' stance, is a major factor behind teen suicides, with a rate for gay adolescents six times higher than for others.
It is high time the bishops took seriously the implications of their own words. and began to show genuine signs of the ''compassion, dignity and respect'' that they speak of so glibly