Yale Law School Professor William N. Eskridge provided testimony at the ENDA (H.R. 3017) hearing on September 23 before the House Committee on Education and Labor in the House of Representatives. Republicans had two panelists to testify against ENDA; Democrats had seven.
Eskridge claims that the Employment Non-Discrimination Act (ENDA) must be passed in order to protect lesbian, gay, bisexual and transgender employees from workplace discrimination – especially in state the local governments. According to Eskridge, “ENDA abrogates the states’ Eleventh Amendment immunity, pursuant to Congress’s authority to enforce the Fourteenth Amendment. The Supreme Court has said that Congress has Fourteenth Amendment authority to create a remedy for state violations of constitutional rights and to establish prophylactic rules to head off harder-to-discern constitutional violations. The 11th Amendment to the U.S. Constitution provides a certain degree of sovereign immunity for states. ENDA would undermine this amendment and give the federal government power to use the 14th Amendment against the states in employment matters.
In plain English, Eskridge wants to use ENDA to violate the right of states and local governments to set their own employment policies.
During a portion of his ENDA testimony, he referred to the effort of citizens in Colorado to keep LGBT individuals from receiving special rights in Colorado law. He noted that:
The arguments in favor of the constitutional initiative included the following: so-called “homosexuals” are promiscuous (“[t]heir lifestyle is sex-addicted and tragic”) and consumed by venereal disease (according to the official Amendment 2 ballot materials, the average gay man dies at 42 years old, the lesbian at age 45); they are predatory, seeking to invade decent people’s houses and schools, take away their jobs, recruit their children, and “destroy the family”; and Coloradans should undo “special rights” given by some communities to “homosexuals and lesbians” that disrupt traditional family values and good institutions such as churches. The sponsors of the initiative believed that these were “moderate” arguments—but in fact they are open appeals to anti-gay prejudice and invoke deeply erroneous stereotypes of LGBT people as diseased, predatory, and disruptive.
Even when they are not so explicitly set forth as they were recently in the Colorado campaign, these anti-gay tropes—immorality, predation, and disruption—still motivate state officials to discriminate against sexual and gender minorities
In his spoken testimony, he denied that any of these Amendment 2 claims were true. However, he misstated the facts. Here are the facts – from medical journals and other reputable resources.
Professor Eskridge wrote an amicus brief for the Lawrence v. Texas case that became the philosophical justification for the Supreme Court to overturn all state laws against sodomy in 2003.
Eskridge is author of Dishonorable Passions, a history of sodomy laws in the United States from 1861 to 2003. In 2003, the Supreme Court issued its Lawrence v. Texas decision. He is a long-time activist on behalf of LGBT individuals who engage in sexual behaviors that have resulted in the spread of venereal diseases and AIDS not only among gays, but bisexuals who have spread AIDS into the heterosexual community.
Eskridge is not only an LGBT activist but an advocate for the abolition of the concept of marriage altogether. He has support Sweden’s efforts to normalize homosexuality and polyamory – the sexual arrangement that includes any number of males or females in a sexual arrangement. Eskridge warns against “fetishizing” the institution of marriage as a one-man, one-woman union.
Professor Eskridge is also author of Gaylaw: Challenging the Apartheid of the Closet. In it, he criticizes laws against prostitution, sado-masochism, pornography, and some forms of intergenerational sex (sex with minors).
According to Eskridge, “…most adolescents are ready for sex and have had sex by aged fifteen but are still not mature decisionmakers; intergenerational sex within a family can be extremely disruptive, but legal intervention may deepen rather than alleviate the disruption.” (Gaylaw, page 267)
Eskridge thinks that sex with pre-teens should be illegal, but he’s not overly concerned about: An adolescent girl who has sex with a related male adult; a teenage girl who has sex with a male adult outside of the family; an adolescent boy who has sex with a related adult; or an adolescent boy who has sex with an adult outside of the family. (Page 267)
Eskridge claims that criminalization of incest and intergenerational sex “allows sex-negative groups to oppose spending state money on sex education and victim-centered therapies without admitting that they are beggaring a solution.” (Page 270)
In short, Eskridge is a sexual anarchist who favors adult-teen sex and the abolition of certain laws that regulating sexual activities between adults and teenagers.
Eskridge compares religious liberty to sexual orientation and believes the Constitution protects a person’s sexual orientation in the same way that it protects religious liberty. He claims that the Due Process and Equal Protection Clauses of the Constitution should be used to invalidate all laws that “discriminate” against sexual orientation.
In Eskridge’s 1997 essay in the Yale Law Journal, “A Jurisprudence of ‘coming out,’: religion, homosexuality, and collisions of liberty and equality in American public law,” he once again compares religion to sexual orienatation. He writes:
Although the law has most often been deployed as an instrument of suppression, there is now a public law concensus to preserve and protect the autonomy of religious and ethnic subcultures, as well as the ability of their members to self-identify without penalty. One thesis of this Essay is that this vaunted public law consensus should be extended to sexual orientation minorities as well.
Eskridge that the “religion clauses of the First Amendment as they have been developed in the last generation are a model for the state’s treatment of sexuality.”
He continues to place sexual orientation on the same level as religion and believes both are protected by the Constitution.
But, what happens when religion clashes with the gay agenda? Eskridge believes the law should be changed to include “gaylegal” concepts of jurisprudence.
He also believes that the government has a duty to reduce “historical discrimination” that justifies burdens on the First Amendment.
He cited the 1983 Bob Jones University case that gave the IRS the power to strip the university of its exemption as a charitable institution because it forbade interracial dating.
This and other cases are used by Eskridge to argue that it’s okay to violate religious freedom when discrimination is involved. He uses this argument to promote the idea that “sexual orientation” discrimination claims will trump religious freedom claims. When religious freedom clashes with the gay agenda, the gay agenda should win, according to Eskridge.
Yet, Eskridge also says: “That the state as employer ought not discriminate on the basis of sexual orientation in its own employment and contracting policies, perhaps as a matter of constitutional law, does not mean that the state also must require private institutions to follow the same non-discrimination policy. When the state seeks to censor my expression or discriminate against me, I am on strong constitutional ground in resisting; when the state seeks to impose my expression on your turf or to silence your opposition to open homosexuality, I am on much weaker constitutional ground. The continuum from nuclear family to the regulatory state parallels a continuum of defensible imposition of public equality goals, with the state being most defensible and the family being least.”
ENDA, however, would impose these pro-LBGT anti-discrimination policies not only on privately-run businesses, but on Christian-run businesses as well.
His gaylaw ideas would routinely trump religious freedom in favor of imposing the LGBT agenda on any business with more than 15 employees.
This is the philosophy of the Democrats’ “expert witness” who testified on behalf of ENDA on September 23, 2009 in the House of Representatives.