How do you celebrate a bill that won't become a law? That's the question facing gay-rights advocates over the next several weeks as they anticipate a historic Senate vote on legislation to ban workplace discrimination based on sexual orientation.
The vote could take place as early as next week, and it will definitely occur before Thanksgiving. It will mark the first time the Senate has voted on the nondiscrimination proposal that has been in the works for 20 years. Its supporters are optimistic that it will pass.
It is highly unlikely that the GOP-led House will take up a Senate-passed gay-rights bill, given the opposition of tea-party and social conservatives. (House GOP staffers say they can't speculate on the House's actions until the Senate actually passes the bill. Fair enough.)
Regardless of what the House does, gay-rights advocates have two goals for the upcoming Senate vote: The first is to get lawmakers used to voting on gay rights. They need practice. "There are very few members of Congress that have taken votes on gay issues," said Fred Sainz, vice president of communications for the Human Rights Campaign. "The more you get to sit with an issue, the more you're lobbied on an issue, the more comfortable you become with it, the more you see that it's not the apocalypse."
The second aim of the Senate vote is to give President Obama an opening to ban sexual-orientation discrimination by federal contractors. That executive option is always open to him, but it becomes easier politically to do it if it appears that Congress will not act. "We have certainly been asking the administration to take executive action," said Stacey Long, public-policy director for the National Gay and Lesbian Task Force. "If it passes the Senate, it does sort of leave the question on [the White House's] doorstep to take action."
No matter what, the Senate vote on the Employment Non-Discrimination Act is a big deal. It is the first time the Senate has weighed in on the issue of sexual orientation in the workplace, and it is the first bill in either chamber that covers transgender individuals. The House passed a version of ENDA in 2007, which was also a big deal, but it did not cover transgender employees. The Senate bill does.
Senate passage is likely but not a slam dunk. The bill's sponsors are still lacking a firm commitment from Democratic Sen. Joe Manchin of West Virginia. Mark Pryor of Arkansas said he was in the yes column. Even with those two senators on board, they would still need at least one more thumbs-up from a Republican to cross the 60-vote threshold that overcomes GOP objections. Manchin would only say, "We're working on it."
This is a case where momentum matters. Senators who are on the fence about ENDA don't want to vote "no" on major civil-rights legislation that winds up passing. Who needs that plastered all over a general-election ad campaign? But squeamish senators who fear primaries also need a comfort level that doesn't come from gay-rights activists. Support from prominent conservatives such as Sens. Orrin Hatch, R-Utah, and Lisa Murkowski, R-Alaska, will go a long way toward convincing other Republicans that they aren't going out on a limb by supporting the legislation.
Gay-rights groups have developed talking points to play down the significance of the proposed legal changes, even though the legislation is a giant gay-rights victory. Passing ENDA won't change most peoples' everyday lives, they say. Most Americans think it's already law. (Some polls put the figure as high as 90 percent.)
Many large corporations already have antidiscrimination policies on sexual orientation, including Marriott International, which is run by a devout Mormon. The Mormon church opposes gay marriage and campaigned aggressively in 2008 for Proposition 8 in California to ban same-sex marriage. But on the employment front, Marriott has been on record since 2009 supporting a nondiscrimination law for gays, lesbians, and transgender workers. It's better for the bottom line, they say.
Many Senate Republicans worry that the bill would open up employers to lawsuits, an argument that carries weight with the GOP. But business groups that traditionally back Republicans, including the U.S. Chamber of Commerce and the Business Roundtable, are officially neutral on the bill. That takes away some of the sting for anyone who isn't vehemently opposed. How it plays out after that will be determined by the mood of the moment.