Politifact on ENDA: "If You Like Your Religious Freedom, You Can Keep Your Religious Freedom"

So after five years of playing the apologist for Obamacare, the deep and serious thinkers at Politifact have now determined that Obama’s pledge over keeping health care plans is a patent falsehood — the “Lie of the Year” as it were, as observers have already commented on the deep and lasting impact such a “flip flop” has on Politifact’s already battered integrity:

PolitiFact’s flip-flop on such a major issue again highlights the questionable nature and dubious value of the brand’s work. Repeatedly the alleged and self-appointed fact-checkers have revealed through incomplete facts, biased reasoning, or cherry-picked sourcing that they are editorialists, not journalist. The ratings assigned by the group are not products of some scientific process, but a willy-nilly concoction of fancy and perspective.

Of course, such chastisement might send lesser beings into a period of reflection.

…but not the folks at Politifact, and especially not when it comes to religious freedom and the outlandish Employer Non-Discrimination Act (ENDA) protecting transgenders:

“ENDA would not cover any secular companies and organizations that are run by committed Christians,” said Harry Mihet, a Liberty Counsel lawyer the coalition referred us to.

Mihet is correct. But as far as discrimination goes, in the bill’s full text, there’s no reference to Christianity, or to any other individual religion, for that matter. All religions are treated the same and can legally invoke the same exemption. And Christianity isn’t the only religion that has historically grappled with acceptance of sexuality and gender identity issues.

So the claim made by Andrea Lafferty’s Traditional Values Coalition — which summarizes the vast majority of Christian organizations concerns on ENDA — that the bill directly threatens religious liberty is deemed “false” by Politifact.  Not just false, but “broad and overstated” and “claims to speak for all Christians” while citing a fringe Lutheran group as evidence that not all Christians agree on such a “divisive and complex issue” as “gay rights” (not religious freedom, mind you… but gay rights).

Which means Politifact thinks the mainstream Christian legal watchdog Liberty Counsel is off their rocker:

Under  Sections  6(a)  and  (b), ENDA employs  a  “primary  purpose” test for employers  or  “primary  duties” test for  employees to  determine  whether the  exemption applies.  These terms will, of course, be judicially construed as they are not defined in the bill.  Under the  plain  language  of the  bill,  only  groups such  as  churches  and religious orders  will  fit  the  exemption  provision.  Most  nonprofit,  and  certainly  commercial, organizations  will  have  a  much  harder  argument  that  the  primary  purpose  of  the organization  is  “religious  ritual  or  worship  or  the  teaching  or  spreading  of  religious doctrine or belief.”  ENDA’s current exemption scheme, as drafted, lends itself to a strict construction, which would lead to a finding that such groups are not exempt from ENDA. In addition to this, ENDA does not in any way exempt any Christian owned and Christian run businesses.  Those employers would still be subject to ENDA despite their sincerely held religious beliefs to the contrary.  

…and the United States Conference of Catholic Bishops (USCCB) — currently under prosecution by the ACLU for teaching that abortions should not be performed by Catholic institutions — is also way out of bounds:

Threatens religious liberty. ENDA could be used to punish as discrimination what many religions – including the Catholic religion – teach, particularly moral teaching about same-sex sexual conduct. Moreover, the bill’s religious freedom protection, which is derived from Title VII, covers only a subset of religious employers, and as a result of recent litigation, is uncertain in scope. Recent experience also shows that even exempted employers may face government retaliation for relying on such exemptions. 

…and Family Research Council (FRC) is just clearly wrong according to Politifact:

ENDA’s “religious exemption” is inadequate to protect people of faith. ENDA contains an exemption for certain “religious organizations,” such as houses of worship or religious schools. However, the exemption fails to protect individual Christians, Jews, Muslims and others who have objections to certain sexual behaviors from making employment decisions consistent with their faith. In fact, it is questionable whether any profit-making corporations would qualify for the exemption, meaning that Christian bookstores, religious publishing houses, and religious television and radio stations could all be forced to compromise their principles in mandated hiring practices. 

But heck — aren’t these all just social conservative organizations after all?   I mean, there’s no way mainstream conservative outfits like the Heritage Foundation could possibly state that ENDA is a direct threat to religious freedom, right?

ENDA could also have serious unintended consequences. It would impose liability on employers for alleged “discrimination” based not on objective employee traits, but on subjective and unverifiable identities. ENDA would further increase government interference in labor markets, potentially discouraging job creation. It does not provide adequate protections for religious liberty or freedom of speech. Finally, especially related to issues surrounding “gender identity” and “transgender” employees, this law could require employment policies that, with regard to a number of workplace conditions, undermine common sense.


I mean, even civil libertarians should be able to see the light on ENDA, right?  I mean, CATO Institute couldn’t possibly  think that ENDA is a gross violation of religious freedom, right?

At what point do we say no to future demands that protected-group status be accorded to employees based on political and controversial systems of belief, physical appearance (the “looksism” issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few of the areas that in fact have been the subject of real-world agitation in recent years? If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

That’s reason enough to oppose ENDA, as I see it.


Yet all of these concerns are casually tossed aside by Politifact’s college intern journalist reporter editor screedwriter here.  In fact, if you notice all the way over on the right side of the so-called “research” done here, Politifact talks to religious organizations on 10 December, and promptly calls  Senator Mark Pryor’s campaign manager the very next day on 11 December.

Ostensibly to get the party line, we suppose…

What does Senator Mark Pryor (D-AR) have to do with any of this?  Pryor is up for re-election in 2014, and he’s got a lot of explaining to do to Christian conservatives back home on bad votes such as ENDA and Obamacare.   Hence the reason Traditional Values Coalition sent an e-mail to Christians back home on 06 December challenging Pryor on his rather odd “North Star” campaign, explaining how his Christian values guide his votes.

That’s why Politifact cares.  Were they checking in?  Pure conjecture… you be the judge.

More importantly, it’s not just Christian organizations of every denomination or civil libertarians or conservative think-tanks that take exception with the fig-leaf veneer of protections in ENDA.  The left noticed them too… and mentioned their plan to strip away the fig-leaf of “protections” in the Washington Blade:

That language would provide leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if ENDA were to become law. It’s broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

“I mentioned to him (Reid) that it was something that just was not palatable,” Washington said. “I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”

Maybe that’s why Senator Dan Coats (R-IN) maintained his concerns on ENDA:

“The legislation before us raises very serious concerns regarding religious freedom,” said Coats in his remarks. “The so-called protections from religious liberty in this bill are vaguely defined and do not extend to all organizations that wish to adhere to their moral or religious beliefs in their hiring practices. 

Coats added, “This bill also would allow employers to be held liable to workplace environment complaints opening the door to the silencing of employees who express their deeply held beliefs. This possibility runs counter to everything America stands for in the realm of free speech.

Folks, this took maybe an hour of actual digging around.  Politifact, OTOH, took the better part of 10 days to come up with an alternative narrative before sticking TVC (and the USCCB, FRC, Liberty Counsel, CATO, and Heritage) with a “false” claim — as if their concerns of religious freedom were trumped by the overarching concern of gay rights.

Which all concludes with a very basic premise that Politifact violates in its so-called fact checking.  It has made a core assumption that anyone defending marriage as an institution is, in the words of Justice Antonin Scalia, hostes humanis generis or enemies of the human race.  Their own bigotry and agenda co-opts their ability to be neutral — as the overextension on Obamacare and the overextension on ENDA clearly demonstrate.

Recently, The Atlantic had a great piece on where some common understanding might arrive.

It’s true that as an LGBT person, I am Otherized against the sexual norm. But at the same time, I have an ethical obligation to my Other—the people unlike me—as well. On this issue, my Others include conservatives, fundamentalists, and more than a few folks from the square states. If my primary ethical obligation to my neighbor is to allow and affirm his moral agency, so long as it does not lead him to commit acts of violence, then what happens when I take away his right to peacefully disagree with me?

We shouldn’t have to resort to trumped up charges of bigotry to explain why opponents of gay marriage are wrong.  Calling someone “anti-gay” when his behavior is undeserving of that label doesn’t only end civil discussion – it degrades the foundation that undergirds a democratic, pluralistic society. Though gay rights’ opponents have at times villified us, I hope that we’re able to rise above those tactics.

Politifact’s editors clearly believe that Catholics, evangelicals, mainstream Protestants, conservatives, and even civil libertarians all have “false” concerns motivated by bigotry rather than reason.

In that regard, Politifact’s neutrality on ENDA deserves a “pants on fire” rating.   Provided Pryor’s campaign staff allows this, of course.