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Robert Farley
By Robert Farley April 23, 2008

The First Amendment is still in effect

A letter from the conservative group Focus on the Family Action makes a multifaceted attack on Sen. Barack Obama in an attempt to portray him as someone who would be "the most left-wing president in our nation's history." The article, written for the organization's Web site and widely circulated via chain e-mail, tries to paint Obama as bad for families, accusing him of everything from trying to further "the homosexual agenda" to being soft on the war against terrorists.

Focus on the Family Action is the lobbying arm of Focus on the Family, an organization founded by evangelical Christian Dr. James Dobson.

One of the claims in the article, written by Tom Minnery, senior vice president of Focus on the Family Action, states: "He (Obama) has pledged to homosexual leaders that he will sign the Employment Non-Discrimination Act ... (forcing businesses to defend themselves against discrimination lawsuits should they not hire a particular candidate who then announces he or she is homosexual or transsexual). He also supports hate-crimes expansion ... (potentially putting churches at risk if they preach the truth about homosexuality)."

First off, Obama has, in fact, strongly supported the Employment Non-Discrimination Act and hate crime expansion. It's the bits that Minnery puts in parentheses that are misleading.

We'll take these one at a time.

The Employment Non-Discrimination Act of 2007 would make it unlawful for employers to discriminate against an individual on the basis of actual or perceived sexual orientation. The law would provide employment protections to gay, lesbian and bisexual employees similar to those in the Civil Rights Act.

The bill passed the House and has come to the Senate. Obama not only supports that measure, but would support expanding it to include gender identity as well, according to his campaign Web site.

Focus on the Family has long been opposed to the legislation.

Minnery told PolitiFact it could lead to this scenario: "Someone applies for a job and they are turned down, and later they identify themselves as a homosexual and claim that is why they weren't hired. How is an employer supposed to defend themselves against that charge? Proving a negative is nearly impossible."

Particularly vulnerable are businesses that have religious people working for them, he said. Suppose, he said, that the person doing the hiring has a Bible on his or her desk and the applicant is put off by that, and claims later that the person had an agenda against homosexuals. If the new law is passed, he said, that applicant would be able to file a claim against the company.

"That's a possibility here," Minnery said.

Hardly, said Arthur Leonard, a professor of law at New York Law School and an expert in gay rights and discrimination based on sexual orientation.

"They have to have known or thought the person was gay for there to be a discrimination claim," Leonard said.

Brian Moulton, associate counsel for Human Rights Campaign, a strong proponent of the Employment Non-Discrimination Act, said Minnery's hypothetical scenario is a red herring.

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"The burden of proof under ENDA is on the employee who has made a claim of discrimination," Moulton said.

Twenty states already have these kinds of discrimination laws, he said, and there has been no run of unsubstantiated lawsuits.

"If this were a real concern, we would have long ago seen this present itself," Moulton said. "The importance of the bill is that people who are losing their jobs because of their sexual orientation have no recourse. That's the real problem."

Minnery's expressed concern about the expansion of hate-crime laws as "potentially putting churches at risk if they preach the truth about homosexuality" is similarly off base. An amendment co-sponsored by Obama sought to expand federal hate crime laws to include sexual orientation and gender identity.

According to Minnery, that could lead to this scenario: Someone hears a sermon about the Bible teachings on homosexuality and then goes out and commits a crime against an innocent person; they claim they got the impetus from the church pulpit; and then the church gets charged with a hate crime.

"It would have a chilling effect on teaching that part of the Bible that deals with homosexuality," Minnery said.

Leonard, the law professor, said: "That's ridiculous."

The First Amendment would protect the church against any kind of action like that, Leonard said.

"No sane prosecuting attorney in the United States would go after a church due to a preacher making a sermon based on the Biblical teachings about homosexuality," Leonard said.

Moulton, of Human Rights Campaign, noted that 32 states have hate crime laws that cover sexual orientation and, he said, "you aren't seeing members of the clergy being prosecuted under that state law for preaching about homosexuality."

The hate crime legislation specifically notes that it will not impact anyone's First Amendment rights, including freedom of speech and religion. Is there such an instance where a church or pastor could be at risk under the law?

"If you say, 'Gay people are evil and should be killed and here's a gun,' then yes," Moulton said. "But someone simply expressing what their religious tradition says about homosexuality from the pulpit, no."

Although the Senate passed the expanded hate crimes legislation backed by Obama in September 2007, negotiators in the House and Senate did not include it as an amendment to the National Defense Authorization Act, and it stalled.

It's fair enough to take issue with Obama on his support of the two measures — certainly they were highly controversial and hotly debated. But Minnery's characterizations of what the bills would mean are misleading. We rule his statement False.


Our Sources

Focus on the Family, "March 2008 Action Update," by Tom Minnery, March 2008

New York Times, "House Votes to Expand Hate-Crime Protection" by David Stout, May 4, 2007

Press release, "Obama Statement on House-Senate Failure to Strengthen Hate Crimes Laws, Guarantee Equality," from Obama's official U.S. Senate Web site, Dec. 6, 2007, "Barack Obama on LGBT Rights"

Human Rights Campaign, 2008 Presidential Questionaire — Sen. Barack Obama

Library of Congress, H.R. 3685, Title: To prohibit employment discrimination on the basis of sexual orientation

Interview with Brian Moulton, associate counsel for Human Rights Campaign, April 8, 2008

Interview with Arthur Leonard, a professor of law at New York Law School, April 9, 2008


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