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Marriage & Family Laws Protecting Sexual Behavior: ENDA

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Overview

A key strategy for advocates of homosexual behavior is to seek legal recognition and special protection on the basis of categories like “sexual orientation,” “gender identity,” and “gender expression.” The goal is to characterize any viewpoint that disapproves of homosexuality as discrimination, similar to discrimination on the basis of race or ethnicity. This strategy is ultimately designed to lead to greater societal approval of homosexual behavior and even a redefinition of marriage, and one of the most well-known attempts as part of this strategy is to push for the passage of the Employment Non-Discrimination Act (ENDA) and similar state and local laws.

Issue Analysis

Background

The law is a moral teacher. For thousands of years, traditional morality has viewed healthy sexual relations as being exclusively between a husband and wife within the bounds of marriage. Until recently, our nation’s laws have recognized and affirmed that view. However, persistent and aggressive efforts by advocates of homosexual behavior have sought to elevate homosexuality as the moral equivalent of heterosexuality by creating special legal protection for “sexual orientation.”

Supporters for giving special protection based on “sexual orientation” seek to portray society as oppressing a minority group by actively denying its basic civil rights. This argument hopes to strike a sympathetic chord among Americans whose decency and sense of justice demand that all people be treated fairly. However, a closer look at this issue reveals that those who engage in homosexual behavior are not an oppressed minority, and the injustices they claim are not comparable to those that motivated the civil rights laws.

Special legal protections are given in the law based on what are called “protected classes.” The traditional protected classes include well-defined, objectively determined, and unchangeable characteristics like race, national origin, and sex. Religion is also included because it is specifically singled out for protection by the U.S. Constitution. The other categories, however, are included based on criteria that are thought to justify extending special protection: immutable characteristics, economic deprivation, political powerlessness, and a history of pervasive discrimination against the group. Those who engage in homosexual behavior do not meet these criteria.

For example, homosexuals possess considerable political influence. The Human Rights Campaign has grown to be the most powerful homosexual advocacy organization in the country, focusing their efforts on electing advocates for “gay rights.” In the last 20 years, the Human Rights Campaign has spent in excess of $12 million on federal political candidates, a dollar figure that puts them ahead of American Airlines, General Motors, Wachovia Bank, AIG, Freddie Mac, and Lehman Brothers.[1]

Proposals to base legal protection on categories like “sexual orientation,” “gender identity,” and “gender expression” are of a different nature than the traditional protected classes, because these categories are vaguely defined, subjectively determined, and changeable.

History and experience have shown that laws protecting homosexual behavior directly contribute to subsequent judicial and legislative decisions redefining marriage to include same-sex couples.[2] In fact, legal scholars who outline the roadmap for redefining marriage candidly acknowledge that enacting laws based on homosexual behavior is a necessary and important step toward the “legal recognition of same-sex marriage.”[3] Every state court that has imposed a redefined understanding of marriage on its citizens discussed and relied upon sexual-orientation-nondiscrimination laws as part of their basis for doing so.[4]

“Sexual Orientation”

Legal protections for “sexual orientation” seek to establish a class based on sexual behavior. Whereas a class like race is based on physical, outward characteristics, homosexuality is a behavior, and behaviors are not visibly apparent to another person.[5] There is no objective means to determine a person’s “sexual orientation” without asking invasive or inappropriate questions.

“Sexual orientation” is a vaguely defined and unsettled concept. Even scholars who regularly study sexual orientation cannot agree on a definition for it.[6] Some researchers, for example, believe that sexual orientation is determined by a person’s self-identification; some think that it is established by sexual behavior; and others believe that it is dictated by mere sexual attraction.[7] Thus, “[t]here is currently no scientific or popular consensus on the exact constellation of experiences that definitively ‘qualify’ an individual as lesbian, gay, or bisexual.”[8] If scientists who study this topic cannot agree on a definition, then it is unwise public policy to place these terms into the law and expect members of the general public to readily understand their meaning.

“Sexual orientation” is not an immutable characteristic. Behaviors can be modified or stopped, and there is no reliable scientific evidence which shows that homosexual behavior is determined by biology. In fact, the vast weight of scientific literature – including articles published in widely respected journals such as the Journal of Sex Research, the Journal of Clinical Psychology, and Developmental Psychology – concludes that homosexual behavior does not result from a biological trait, but from behavioral phases and/or social influences.[9] Scholars have thus acknowledged that a person’s professed “sexual orientation is not static,” and that he or she may change it multiple times throughout the course of a lifetime.[10] Thus, despite popular political perception, it is plain that sexual orientation is not biologically determined and immutable, but instead is a changeable concept.

“Gender Identity” and “Gender Expression”

The concepts of “gender identity” and “gender expression” as protected classes are even more troublesome than “sexual orientation.” Adding these concepts to the law would bring about a significant shift in the legal understanding of maleness and femaleness. Federal and Arizona law, particularly nondiscrimination law, currently determines a person’s status as male or female on the basis of sex.[11] Sex is determined by a person’s biology and anatomy.[12] It is an objectively verifiable characteristic that is familiar throughout the legal system.

The novel concepts of “gender identity” and “gender expression,” unlike sex, are determined by a person’s subjective “conception of oneself” as “male, female, or intersex.”[13]

“Gender identity” is an internally conceived and objectively unverifiable characteristic. “Gender expression” is particularly far reaching, for it includes not only a person’s internal conceptions of himself or herself, but also any steps that he or she might take to express externally those internal feelings.

A person’s internal perceptions of gender are not readily visible to an outside observer and can be quite fluid. Essentially, protecting this category in the law sets up a trap for those who seek to abide by the law because persons can determine, based solely on their own, unexpressed feelings, whether they are included in the class. There is no objective way to verify whether the person is qualified under this category and thus no way to know for certain at any given time whether a person is violating the law.

Types of Proposed Laws

Laws protecting sexual behavior usually fall into one of three major categories: “hate crimes,” employment non-discrimination laws, and domestic partner benefits or recognition.

For more information about these types of laws, see the Policy Page on Hate Crimes, as well as the Policy Page on Domestic Partnerships and “Civil Unions.”

Employment Non-Discrimination Act (ENDA)

Disguised as a logical extension of the civil rights laws, ENDA provides special rights in the employment context based on “sexual orientation,” “gender identity,” and “gender expression.” There is no evidence that such special protections are needed, and ENDA goes against the prevailing rule that all employment is “at will.” These special rights are also in potential opposition to an employer’s deeply held, constitutionally protected freedoms of association, religion, and belief.

ENDA threatens to increase litigation costs, particularly for small businesses. Employment discrimination lawsuits are already one of the biggest targets for plaintiffs’ attorneys. ENDA expands dramatically the legal grounds for suing employers and threatens to impose vast new costs on already heavily burdened small businesses.

ENDA also creates reverse discrimination. Under current law, most employees can be fired at will, with or without cause. However, under ENDA, in this age of litigiousness, when employers are faced with a choice between laying off two employees, and one of them has identified himself as a homosexual, the employer will feel constrained to keep the homosexual employee and lay off the heterosexual employee. The law of unintended consequences will operate and promote a new form of employment discrimination.

The effects on the rights of conscience for employers will be negative as well. Employers with sincerely held religious beliefs who have operated their businesses in accordance with their biblical values will no longer be able to do so without facing charges of discrimination under ENDA. Religious organizations like schools, universities, day care centers, homeless shelters, and hospitals face the same predicament. The religious exemptions offered in most ENDA proposals are very narrow and do not protect para-church organizations, and, in many versions, do not even entirely protect churches. This is a grave and serious concern, as fundamental constitutional rights are at risk.

Moreover, the U.S. Supreme Court has ruled that governments can punish organizations that fail to comply with discrimination legislation by taxing them. This decision allows the state to impose penalties on religious organizations that hold religious beliefs that conflict with discrimination laws like ENDA. This is another way that ENDA infringes on the constitutionally protected freedoms of religion and association.

Nondiscrimination laws that govern private behavior place heavy burdens on personal liberty. To the extent nondiscrimination laws are used at all, they should be used to rectify only the most egregious social harms. There is no evidence to justify adding “sexual orientation,” “gender identity,” or “gender expression” to the protected classes in employment nondiscrimination law.

Those who engage in homosexual behavior are not at a disadvantage in the business world. Persistent and aggressive lobbying has led nearly 90 percent of Fortune 500 businesses to add ENDA-like protection to their own employment policies.[14] Additionally, proponents of ENDA argue that protecting “sexual orientation” and “gender identity” is good for businesses. If that is true, new, highly invasive, very expensive laws that advance controversial social policies are unnecessary as the free market will work out this issue itself.

Efforts to pass ENDA in Congress have failed to date, but the effort persists, with advocates introducing ENDA legislation every year.[15]

Twenty-one states and the District of Columbia have passed laws adding “sexual orientation” to the protected classes for employment law.[16] Of those, seventeen and D.C. also include “gender identity.”[17]

Arizona Law on ENDA

In Arizona, ENDA legislation passed the Senate in 2001. No House vote was taken. Similar legislation has been routinely introduced since 2001 without garnering passage.

Governor Napolitano signed an executive order in June 2003 effectively bringing ENDA to state government agencies. The order provides special protection for government employees based on “sexual orientation.”

In Arizona, advocates are increasingly looking to pass city versions of ENDA due to the inability to achieve success at the Arizona legislature. Year after year, homosexual activists craft bills to pass statewide ENDA regulations; however, the Arizona legislature has rightfully rejected these politically motivated attempts.

At the city level, Phoenix, Tucson, and Flagstaff have greatly expanded their nondiscrimination ordinances, and each of the ordinances is riddled with vague terms and constitutional, moral, and ethical problems. For example, the recently passed ordinance in Phoenix criminalizes conduct by a private business owner that any individual believes to be a “direct or indirect” implication that the individual might be “unwelcome.”

Beyond city versions of ENDA, the cities of Phoenix, Mesa, Scottsdale, Tempe, Flagstaff, and Tucson all provide special rights to their homosexual employees. Tempe and Tucson also include “gender identity” as a protected class. Arizona State University, Northern Arizona University, the University of Arizona, the Maricopa County Community Colleges, and the Pima County Community Colleges have non-discrimination policies that cover “sexual orientation” and “gender identity.”

As an example of how these “nondiscrimination” laws create a direct conflict with the First Amendment religious freedoms of all citizens, consider the case of Elane Photography. New Mexico has a statewide law that prohibits discrimination on the basis of sexual orientation. In 2008, a private photographer declined to photograph a same-sex commitment ceremony because her and her husband’s Christian beliefs were in conflict with the message communicated by the ceremony. After a complaint was filed with the New Mexico Human Rights Commission, the photographer was fined nearly $7,000 for violating the nondiscrimination policy. The photographer challenged the fine in court, and in August 2013 the New Mexico Supreme Court ruled against the photographer, essentially saying that the nondiscrimination law trumps the sincerely held religious beliefs of the photographer. One justice of the Court wrote that the photographer and her husband “now are compelled by law to compromise the very religious beliefs that inspire their lives” and that doing so “is the price of citizenship.”[18]

Sadly the Elane Photography ruling stands, pending an appeal to the U.S. Supreme Court, yet a recent poll confirms that this ruling goes against the overwhelming majority of Americans who believe a business should not be forced to violate their deeply held religious beliefs in situations such as this.[19]

Talking Points

  • People expect equal protection under the law, not special protection for some groups. Yet ENDA laws grant special rights based on sexual behavior.
  • Laws like domestic partnerships, ENDA, and adding “sexual orientation,” “gender identity,” or “gender expression” to protected classes opens the door to same-sex “marriage.” In states like California and Connecticut that enacted “civil unions” or “domestic partnership” recognition were prime targets for a lawsuit claiming that state recognition of a non-marital relationship is a violation of constitutional guarantees of equal protection.
  • No one knows exactly what the terms “gender identity” and “gender expression” mean. There is dispute even among homosexual activists about what these terms mean. Basing public policy on vague and agenda-driven catch phrases is misguided and irresponsible.

Conclusion

Advocates of homosexual behavior are working to stifle opposition and force society to approve of their behavior. Laws that protect sexual behavior are a key tool these advocates have used to characterize differing viewpoints as “discrimination” or “hate speech.” These policies are also a major step toward completely redefining marriage.

© January 2014 Center for Arizona Policy, Inc. All rights reserved.
This publication includes summaries of many complex areas of law and is not specific legal advice to any person. Consult an attorney if you have questions about your specific situation or believe your legal rights have been infringed. This publication is educational in nature and should not be construed as an effort to aid or hinder any legislation.


[1] Top All-Time Donors, 1989-2012, Center for Responsive Politics, www.opensecrets.org/orgs/list.php (last visited Aug. 28, 2013).

[2] For a complete and detailed discussion of this topic, please see Thomas M. Messner, ENDA and the Path to Same-Sex Marriage, Heritage Foundation Backgrounder No. 2317 (September 18, 2009), available at http://s3.amazonaws.com/thf_media/2009/pdf/bg2317.pdf.

[3] William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights 154 (2002) (describing sexual-orientation-nondiscrimination laws as important progress toward the “legal recognition of same-sex marriage”); Yuval Merin, Equality for Same-Sex Couples 309 (2002) (describing sexual-orientation-nondiscrimination laws as an essential part of the “necessary process” for obtaining legal recognition of same-sex unions).

[4] Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 967 (Mass. 2003) (stating that “Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation” and citing the many state sexual-orientation-nondiscrimination laws); In re Marriage Cases, 183 P.3d 384, 428 (Cal. 2008) (“There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. . . . This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation [citing the many state sexual-orientation-nondiscrimination laws]”), superseded by Cal. Const. art. I, sec. 7.5; Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 435 (Conn. 2008) (citing the State’s sexual-orientation-nondiscrimination laws as support for the statement that “it is the public policy of this state that sexual orientation bears no relation . . . to an individual’s ability otherwise to participate fully in every important economic and social institution and activity that the government regulates”); id. at 447-48 (“In recent years, our legislature has taken substantial steps to address discrimination against gay persons.”); id. at 451-52 (“The antidiscrimination provisions of our gay rights law . . . represent a legislative consensus that sexual orientation discrimination . . . is widespread, invidious and resistant to change.”); Varnum v. Brien, 763 N.W.2d 862, 890-91 (Iowa 2009) (“[T]he Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. [citing the many state sexual-orientation-nondiscrimination laws] Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential.”).

[5] M.V. Lee Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men 47 (2001) (“Sexual orientation is not an observable characteristic of an individual, as sex and race usually are”); Deposition Transcript of Gregory M. Herek, Perry v. Schwarzenegger, Case No. 09-CV-2292, at 92 (N.D. Cal. Nov. 6, 2009) (on file with the author and the United States District Court for the Northern District of California) (“[A person’s] sexual orientation is not readily apparent to other people just by looking at them”).

[6] Todd A. Salzman & Michael G. Lawler, The Sexual Person 150 (2008) (“The meaning of the phrase ‘sexual orientation’ is complex and not universally agreed upon.”); Gail S. Bernstein, Defining Sexual Orientation, Selfhelp Magazine

(May 28, 1998) (“Much of the confusion about sexual orientation occurs because there is no single agreed upon definition of the term.”); Ilan H. Meyer & Patrick A. Wilson, Sampling Lesbian, Gay, and Bisexual Populations, 56 Journal of Counseling Psychology 23, 23 (2009) (“[H]ere lies the first problem for researchers of LGB populations: The population’s definition is elusive.”).

[7] Laura Dean, et al., Lesbian, Gay, Bisexual, and Transgender Health: Findings and Concerns, 4 Journal of the Gay and Lesbian Medical Association 102, 136 (2000) (“[T]here is still no general consensus on the definitions of the terms [heterosexual, homosexual, or bisexual], although each includes components of at least one of three dimensions: (1) sexual orientation identity, (2) sexual behavior, and/or (3) sexual attraction . . . . For example, one study might define sexual orientation as a form of identity . . . , while another defines it as gender choice in sexual partners, and yet another as the gender of those to whom one is sexually attracted”); Ilan H. Meyer & Patrick A. Wilson, Sampling Lesbian, Gay, and Bisexual Populations, 56 Journal of Counseling Psychology 23, 24 (2009) (“[D]efinitions of sexual [orientation] vary: Several populations may be defined. Researchers have distinguished among sexual identity, sexual behavior, and attraction . . . . Even within each of these categories, varied groups can be defined.”).

[8] Lisa M. Diamond and Ritch C. Savin-Williams, Gender and Sexual Identity, in Handbook of Applied Developmental Science Vol. 1 at 102 (Richard M. Lerner et al. eds., 2002). Compounding this definitional problem is scholars’ recognition that sexual orientation is not divided into clear compartments; instead, sexual orientation, in the words of the American Psychological Association, “ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.” American Psychological Association, Answers to Your Questions for a Better Understanding of Sexual Orientation and Homosexuality 1 (2008), available at www.apa.org/topics/sexuality/sorientation.pdf. Put differently, “no sharp line distinguishes homosexuality and heterosexuality.” Declaration of Dr. Robert Galatzer-Levy in Support of City and County of San Francisco’s Constitutional Challenge to Marriage Statutes, In re Marriage Cases, Case No. 429-539, at ¶ 10 (Cal. Super. Ct. Sept. 1, 2004) (on file with the author and the Superior Court of the State of California, County of San Francisco). Thus, “the concept of sexual orientation is not as straightforward as everyday conversations, media accounts, and political slogans would imply. Rather the topic is fraught with vagaries, the terminology is ambiguous and ill-defined, and the apparently exclusive and stable categories commonly employed actually disguise complex dimensionality and fluidity.” Janis S. Bohan, Psychology and Sexual Orientation Coming to Terms 13 (1996).

[9] Linda D. Garnets & Letitia Anne Peplau, A New Look at Women’s Sexuality & Sexual Orientation, UCLA Center for the Study of Women Update, at 4 (Dec. 2006) (“Women’s sexual orientation is shaped by such social and cultural factors as women’s education, social status and power, economic opportunities, and attitudes about women’s role.”); Letitia Anne Peplau, et al., The Development of Sexual Orientation in Women, in 10 Annual Review of Sex Research 70, 87 (R.C. Rosen ed., 1999) (“[T]he impact of biological factors in determining women’s sexual orientation appears to be weak or nonexistent.”); see also Richard C. Friedman and Jennifer I. Downey, Sexual Orientation and Psychoanalysis: Sexual Science and Clinical Practice 39 (2002); Letitia Anne Peplau & Linda D. Garnets, A New Paradigm for Understanding Women’s Sexuality and Sexual Orientation, 56 Journal of Social Issues 329, 332 (2000); Rosemary C. Veniegas & Terri D. Conley, Biological Research on Women’s Sexual Orientations: Evaluating the Scientific Evidence, 56 Journal of Social Issues 267, 277 (2000); J.M. Bailey, et al., Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Twin Sample, 78(3) Journal of Personality and Social Psychology 524-536, 533 (2000); Scott L. Hershberger, Biological Factors in the Development of Sexual Orientation, in Lesbian, Gay, and Bisexual Identities and Youth: Psychological Perspectives 27, 40 (Anthony R. D’Augelli & Charlotte J. Patterson eds., 2001); J.M. Bailey, et al., Heritable Factors Influence Sexual Orientation in Women, 50 Archives of General Psychiatry 217 (1993); J.M. Bailey & R.C. Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives of General Psychiatry 1089 (1991); Janet R. Jakobsen & Ann Pelligrini, Love the Sin: Sexual Regulation and the Limits of Religious Tolerance 96 (2004); Joseph P. Stokes, et al., Predictors of Movement Toward Homosexuality: A Longitudinal Study of Bisexual Men, 43 Journal of Sex Research 304, 305 (1997); Roy F. Baumeister, Gender Differences in Erotic Plasticity: The Female Sex Drive as Socially Flexible and Responsive, 126 Psychological Bulletin 347 (2000); Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 Journal of Social Issues 297 (2000); Karen L. Bridges & James M. Croteau, Once-Married Lesbians: Facilitating Changing Life Patterns, 73 Journal of Counseling and Development 134, 135 (1994) (describing C. Charbonneau and P.S. Lander, Redefining Sexuality: Women Becoming Lesbian in Mid-Life, Lesbians at Mid-Life, at 35 (B. Sang et al. eds., 1991)); Lisa M. Diamond, Development of Sexual Orientation Among Adolescent and Young Adult Women, 34 Development Psychology 1085 (1998); Susan Rosenbluth, Is Sexual Orientation a Matter of Choice?, 21 Psychology of Women Quarterly 595, 605-07 (1997); Sari H. Dworkin, Treating the Bisexual Client, 57 Journal of Clinical Psychology 671 (2001); Lisa M. Diamond, Was It a Phase? Young Women’s Relinquishment of Lesbian/Bisexual Identities Over a 5-Year Period, 84 Journal of Personality and Social Psychology 352 (2003).

[10] Lisa M. Diamond, Female bisexuality from adolescence to adulthood: Results from a 10-year longitudinal study, 44 Developmental Psychology 5, 9 (2008); Gary J. Gates, et al., Marriage, Registration and Dissolution by Same-Sex Couples in the U.S. 10 (July 2008), available at http://escholarship.org/uc/item/5tg8147x#page-1 (concluding that 20% of men and 29% of women in same-sex domestic partnerships in California had previously been married to a person of the opposite sex); Michael R. Kauth & Seth C. Kalichman, Sexual Orientation and Development: An Interactive Approach, in The Psychology of Sexual Orientation, Behavior, and Identity 82 (Louis Diamant & Richard D. McAnulty eds., 1995) (“[S]exual orientation is not static and may vary throughout the course of a lifetime.”); Linda D. Garnets & Letitia Anne Peplau, A New Look at Women’s Sexuality & Sexual Orientation, UCLA Center for the Study of Women Update, at 5 (Dec. 2006) (“Women’s sexuality tends to be fluid, malleable, shaped by life experiences, and capable of change over time. . . . [M]ultiple changes in sexual orientation are possible . . . [due] to a wide range of social, cognitive, and environmental influences. Women who have had exclusively heterosexual experiences may develop an attraction to other women and vice versa”); Letitia Anne Peplau & Linda D. Garnets, A New Paradigm for Understanding Women’s Sexuality and Sexual Orientation, 56 Journal of Social Issues 329, 333 (2000) (“[W]omen’s identification as lesbian, bisexual, or heterosexual and women’s actual behavior can vary over time.”); John C. Gonsiorek, et al., Definition and measurement of sexual orientation, 25 Suicide and Life-Threatening Behavior 40 (1995) (“[M]any lesbian women . . . perceive choice as an important element in their sexual orientations.”).

[11] See 42 U.S.C. § 2000e-2 (“It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex”); Ariz. Rev. Stat. § 41-1402(8) (discussing “the elimination of discrimination” “because of race, color, religion, sex, age, disability, familial status or national origin”).

[12] Shuvo Ghosh, Sexuality, Gender Identity, eMedicine, http://emedicine.medscape.com/article/917990-overview (last visited Aug. 28, 2013) (“Sex . . . is defined by the gonads, or potential gonads, either phenotypically or genotypically.”).

[13] Id.

[14] Corporate Equality Index 2011, Human Rights Campaign 7, www.hrc.org/files/assets/resources/CorporateEqualityIndex_2011.pdf (last visited Sept. 24, 2013).

[15] Employment Non-Discrimination Act, H.R. 1397, 112th Cong. (2011); see also Juliet Eilperin, Advocates launch campaign to bar workplace discrimination against gays, Washington Post, July 30, 2013, http://articles.washingtonpost.com/2013-07-30/politics/40896717_1_rights-groups-employment-non-discrimination-act-human-rights-campaign (last visited Aug. 8, 2013).

[16] California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

[17] California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, Maine, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont, and Washington.

[18] Elane Photography v. Willock, No. 33,687, 30 (N.M. 2013).

[19] 85% Think Christian Photographer Has Right to Turn Down Same-Sex Wedding Job, Rasmussen Reports, July 7, 2013, http://m.rasmussenreports.com/public_content/business/general_business/july_2013/85_think_christian_photographer_has_right_to_turn_down_same_sex_wedding_job (last visited Aug. 28, 2013).