President Obama is a gifted politician. He is gifted with rhetoric virtuosity. He is gifted with the ability to lie directly to camera without blinking. And he is gifted with some of the most incompetent conservative opposition in the history of the country.
How else to explain the fact that after years of President Obama holding up one hand to wave a wand to grab attention while using the second hand to stuff a rabbit into his hat, Republicans are still staring slack-jawed at the wand?
The wand, in this case, is social policy. Buffeted by the winds of his administration's incompetence and an unexpected level of media blowback over the rollout of Obamacare, President Obama has fallen back on the oldest trick in the book: talking about gays and lesbians. This week's episode of "Distract a Republican" began with the Senate launching the Employment Non-Discrimination Act (ENDA), a boondoggle designed to please gay rights advocates and trial lawyers. The bill would supposedly stop discrimination based on sexual orientation or gender identity in the workplace. In reality, the bill creates a vaguely defined protected class that would take precedence over religious Americans.
The bill's language suggests that an "individual's actual or perceived sexual orientation or gender identity" must never be the basis for a job dismissal. But this phrase means nothing. "Actual or perceived" is Orwellian language, a legal catchall. And what does "gender identity" mean according to the terms of the law? "The gender-related identity, appearance, or mannerisms ... of an individual, with or without regard to the individual's designated sex at birth." So if you run a Hooters and one day Mandy shows up deciding she's Bill, you're out of luck. And if you run an elementary school and Mr. Adams shows up as Ms. Eve one day, firing is out of the question.
Beyond such questions lies the question of when litigation is appropriate. The free market makes clear that those who baselessly discriminate pay the price in terms of losing the best labor. The greatest force for tolerance and diversity in human history has been capitalism; government involvement suggests that the government can pick winners and losers rather than allowing voluntary transactions to do so.
These are all problems with the bill. But the biggest problem is this: It's a political loser for Republicans no matter how they slice it. That's why President Obama is pushing it. And that's why Republicans would be smart to simply state that this is an important debate that can wait for another time, given the crisis in our health care system.
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