While the Employment Non-Discrimination Act is now headed toward final passage in the Senate, don’t expect a surge of support from lawmakers. It’s a safe bet that in the end the measure will be supported by less than 70 senators.
The bill, which bans workplace discrimination based on gender identity or sexual orientation, has not created the “bandwagon effect” sometimes seen in major legislation, in which a slew of supporters piles on once a bill is certain to pass.
In fact, it took last-minute wrangling Monday — partially due to the absence of senators expected to vote “aye” — to secure enough votes on the motion to proceed to the bill, which passed 61-30. A final vote could come as early as Wednesday.
Passage had been all but locked in by Monday morning, with Sen. Dean Heller, R-Nev., announcing his support. He became the 60th senator expected to vote for the bill, with all 55 Democrats and independents indicating their backing.
Other Republican senators in favor of the bill are Sens. Susan Collins of Maine and Mark Kirk of Illinois, who are cosponsors. Sens. Lisa Murkowski of Alaska, who wasn’t present for Monday’s vote, and Orrin Hatch of Utah voted for the bill in committee. Republicans Kelly Ayotte of New Hampshire, Pat Toomey of Pennsylvania, and Rob Portman of Ohio — who had been publicly undecided on the legislation — are those being eyed as possible “yes” votes. They supported the motion to proceed after lobbying from Collins. At one point, Senate Majority Leader Harry Reid and the No. 3 Democrat in the Senate, Chuck Schumer, entered the Republican cloakroom as part of the effort and struck an agreement to put up additional amendments for votes.
As part of the deal, an amendment from Ayotte and Portman that prevents local and state government from retaliating against those exempt from ENDA will have to reach just a 50-vote threshold for passage. Another vote will be held on an amendment from Toomey that broadens the definition of a religious organization under ENDA. That will need 60 for passage.
The bill won’t likely become law in this Congress. House Republican leaders say the protections afforded under ENDA are already covered by existing law. “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small-business jobs,” said Michael Steel, a spokesman for House Speaker John Boehner.
Despite that, passage in the Senate is a major victory for the gay-rights community, which has seen a surge in political “wins” over the last year, including the Supreme Court’s landmark decision striking down the Defense of Marriage Act and New Jersey becoming the 14th state to embrace same-sex marriage.
“In the 44 years since Stonewall, this has been the gayest year in history,” said Fred Sainz, vice president for communications at the Human Rights Campaign. “With the Senate prospectively joining the trend, that really tells you that we are on an upward trajectory.”
But lawmakers’ support lags behind public opinion. The bill definitely has 60 votes and may get a few more. But the nation is far more supportive. About three-quarters of Americans believe discrimination in the workplace against gays, lesbians, or transsexuals should be illegal, including 60 percent of Republicans and 59 percent of white evangelical Protestants, according to the Public Religion Research Institute, a nonpartisan think tank.
Yet the issue still seems to make lawmakers squeamish, even though advocates have done their best to portray the nondiscrimination bill as a logistical ho-hum for employers. (Many of the largest employers already have policies in place prohibiting discrimination based on sexual orientation.)
“About some of the Republican reticence on the issue — I just think they may not have fully gotten the memo that their constituents have moved, even in very recent time,” said PRRI CEO Robert Jones. “This is an area where the ground has been shifting remarkably quickly.”
Sen. Jeff Flake, R-Ariz., supported a similar antidiscrimination bill in the House, which failed in 2007. But he appears to be a “no” this time around. He told National Journal Daily that he supports the House version, not the Senate version. The main difference between the two bills is that the Senate version covers transgender individuals, and the House bill did not.
Portman has said he is “inclined” to support the bill. He has already publicly stated his support for same-sex marriage.
Even some Senate Democrats weren’t an easy sell on the bill. Advocates assumed all along that every Democrat would get on board with the bill, but they had a hard time explaining why some, like Sen. Bill Nelson of Florida, held out until the last minute. Nelson, unlike the other Democratic latecomers, Sens. Joe Manchin of West Virginia and Mark Pryor of Arkansas, didn’t have a political reason for staying silent. Nelson’s seat is safe, he isn’t up for reelection until 2018, and Florida is generally favorable toward gay rights. Chalk up Nelson’s foot-dragging to individual quirks, the advocates say.
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