First-Ever Senate Vote on Tap to Ban Workplace Discrimination Against Gays

CHICAGO - JULY 21: A man smokes a cigarette outside a Marriott Courtyard hotel near the Magnificent Mile shopping district July 21, 2006 in Chicago, Illinois. Beginning in September Marriott International will ban smoking in all 2,300 of its hotels. 
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Fawn Johnson
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Fawn Johnson
Oct. 29, 2013, 6:07 p.m.

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.

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