Test of tolerance

In 1964, when Congress outlawed discrimination in employment on the basis of race, color, religion, gender or national origin, the idea of adding sexual orientation to the litany of improper motives was not so much unpopular as unthinkable. Fortunately, times have changed. Thanks in large part to trailblazing gay activists, public opinion has evolved to the extent that a ban on discrimination on the basis of sexual orientation passed the House last week by a vote of 235 to 184.

Attitudes haven’t changed enough, however, to make the Employment Non-Discrimination Act unnecessary. On the contrary, it deserves to be not only approved but strengthened by the Senate. Then it should be signed by President Bush, whose claim to be a “compassionate conservative” is mocked by his administration’s unconvincing arguments against the bill.

Although 20 states (including California, beginning in 2000) and the District of Columbia have made it illegal to fire or refuse to hire someone because of sexual orientation, the majority of states don’t offer such protection. Even if they did, the interstate nature of the economy would justify closing a gap in the jurisdiction of the federal courts and the Equal Employment Opportunity Commission.

Paradoxically, the willingness of gay and lesbian Americans to be open about their sexual orientation -- itself a consequence of the gay rights movement -- has made it easier for bigoted employers to identify them. Such employers sadly still exist, even at a time when a majority of Fortune 500 companies provide benefits for the same-sex partners of their employees.

The House bill’s enactment is far from assured, however. It has been criticized both for being too narrow -- it deleted a provision that would have banned discrimination against transgender workers -- and for being too broad. The Senate could rectify the first omission when it takes up the bill. The argument that the bill sweeps too widely, however, is the more ominous obstacle because it is being used to justify a possible presidential veto.

Last month, the Office of Management and Budget raised several, mostly spurious, objections to the bill. For example, the agency implausibly opined that the bill might undermine the federal Defense of Marriage Act, which defines marriage as the union of “one man and one woman.” It speculated that, in allowing discrimination lawsuits against state governments, the bill might run afoul of Supreme Court decisions about state immunity -- even though the bill contains a severability clause that would preserve most of the law even if the court voided part of it. The agency also nitpicked the language of an exemption for religious schools with a theological position against homosexuality.

Overall, the agency warned, the bill threatened “burdensome litigation beyond the cases that the bill is intended to reach” -- an objection that has been lodged against every civil rights bill.

Like most of those campaigning to succeed him, Bush opposes same-sex marriage. But he also has portrayed himself as inclusive and opposed to discrimination. That image is increasingly difficult to sustain. It couldn’t survive a veto of the employment act.