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The argument against ENDA

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The US senate passed ENDA, a bill making it illegal to discriminate against employees for the reasons of sexual orientation. What this does is add to the list of “protected” class of citizens who have experienced discrimination for reasons other than their ability perform in the work place.

Setting aside the narrow argument that this is a state matter (21 states already ban such discrimination while 29 don’t) let’s assume for the sake of argument the federal government is well within its constitutional limits to pass such a law. The question then becomes is it wise to do so.

The underlying reason such laws are passed, whether in the state or federal level, is to prevent an employer from denying anyone a job for reasons other than ability. That denial is based on what a particular class of people is thought to represent and it puts into practice prejudices that are pernicious by stripping the potential employee of their individuality in place of race, religion, ethnicity, you name it.

But should we “name it”? Let’s agree for the sake of argument that we all have a right against discrimination. Can we do that? Do we? Where does that right come from? Are rights inalienable, part of what we mean by freedom in that we are free because that is part of our nature? Or are they bestowed upon us by government in that we are not free unless the government recognizes us as such, therefore it dispenses rights when it feels we ought to have it?

The limits to what we call “rights” are freedoms we have that stop short of harm to others. For that end we call laws. No one has the right to do harm, that would be a denial of the rights of others.

If rights are inalienable, government nor institutions or individuals cannot deny them. When we consider discrimination as a denial of rights, does it matter what form that discrimination is based? If it is wrong that the right is denied to a citizen simply because they represent a class of people can’t we assume that it matters less what it is they seem to represent than it does the fact that they are discriminated in the first place?

This is the flaw of ENDA’s rationale. Who has rights? It comes back to the question of where rights come from in the first place. Is it all citizens or just the ones government thinks ought to be protected? Suppose ENDA were to be voted on in the House of Representatives and it were turned down? Wouldn’t that make it okay then to deny gay people rights? ENDA makes an implicit assumption that rights are bestowed by government and are not inalienable. Gay’s do have rights just like anyone else and they don’t need a government law to codify those rights because they already retain them by virtue of being citizens.

Just as government should not have the power to deny rights we ought not assume that it can pick and choose who has them in the first place.

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