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. 
National Journal
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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