The Senate Thursday (November 7) approved the flagship piece of legislation that the LGBT community has fought for over the past 19 years and more.
The 64-32 vote marked the first time the Senate has approved the Employment Non-Discrimination Act. The only other Senate vote, in 1996, failed on a vote of 49-50.
ENDA seeks to add language to the federal Civil Rights Act to prohibit employers from taking adverse employment actions against employees or job applicants based on “sexual orientation” and “gender identity.” It applies to employers with more than 15 employees but exempts some employers based on the degree to which they are involved in religious activities.
While the bill is not as comprehensive as the original legislation introduced by the late Representative Bella Abzug in 1974 and championed by the late Senator Ted Kennedy beginning in 1996, it is considered to be both a critical step toward securing equal rights for LGBT people and a powerful symbolic asset.
The major hurdle now is the Republican-controlled House of Representatives. House Speaker John Boehner (R-Ohio) has repeatedly said he would not bring ENDA to the floor for a vote, saying he does not believe the legislation is necessary and that it would lead to frivolous lawsuits.
That looming hurdle did not dampen the enthusiasm of senators praising the Senate for its passage of the bill.
Senator Jeff Merkley (D-Oregon), who took the lead on ENDA in the Senate after the death of Kennedy, praised Kennedy’s leadership and that of others in both political parties.
“From the Declaration of Independence to the Constitution to our battles over slavery, our battles over gender discrimination, race discrimination, we have fought to capture that vision of equality and liberty and opportunity and fairness embedded in our founding documents and our founding vision,” said Merkley, at a press conference after the first two votes were secured. “We’ve taken a huge stride today in that direction.”
Senator Tom Harkin (D-Iowa), who championed the bill in his Senate committee, said, “Today is an historic day.” He noted that the Congress passed the Civil Rights Act in 1964 and the Americans with Disabilities Act in 1994.
“Now, we have sort of finished the trilogy,” said Harkin, who also praised Merkley’s leadership on ENDA.
“We wouldn’t be here without Jeff Merkley,” said Harkin. “He spearheaded this whole effort.” And Harkin called out Senator Tammy Baldwin’s (D-Wisconsin) involvement “instrumental.”
The passage of ENDA came after the Senate first rejected an amendment to dramatically expand the number of employers who could claim a religious exemption to ENDA. The amendment, introduced by Senator Pat Toomey (R-Pennsylvania), needed 60 votes to pass.
Section 6 of the original bill stated, “This act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.”
On November 6 the Senate approved, by voice vote, an amendment from six Republican senators led by Senator Rob Portman (R-Ohio) to ban state and local governments from “retaliating against religious groups that take action only permissible because of the religious exemption clause” in ENDA. While LGBT groups were not enthusiastic about the Portman amendment, they didn’t oppose it.
But nearly every LGBT group and supporter opposed the Toomey amendment. It sought to expand the exemption to include entities “managed by a church or religious organization, officially affiliated with a particular religion, or [that] teach a curriculum directed toward propagating a particular religion.” It would also apply to organizations with “both religious and secular functions.”
Speaking on behalf of his amendment Thursday morning, Toomey said ENDA “makes a strong stand” for equality. But he said religious freedom is also an important value. He said he thinks his amendment “strikes an appropriate balance.” He said he was concerned the courts have not been consistent in recognizing which religious institutions should enjoy the religious exemptions that currently exist in the Civil Rights Act.
Harkin spoke in opposition to Toomey’s amendment, saying that changing the existing language of the Civil Rights Act will call into question language that employers are already familiar with and know how to comply with. He said the Toomey amendment “officially affiliated with a particular religion” to discriminate.
“This is a new term that is undefined in the text of the amendment and could lead to thousands of pro-profit businesses being allowed to discriminate,” said Harkin. He said an employer might be considered “affiliated” simply by receiving a newsletter from a religious group. “It threatens to gut the fundamental purpose of ENDA,” said Harkin.
Baldwin, the Senate’s only openly gay member, said the current religious exemption in ENDA is a “very carefully negotiated bipartisan” exemption. She urged the Senate to reject Toomey’s amendment.
The Senate did so, by a vote of 43-55.
The Senate then voted 64-34 to approve a procedural motion to close debate on ENDA. (All roll call votes are available on the Senate website approximately one hour after they are recorded.)
ENDA supporters were clearly hoping for a robust vote in support of the underlying bill and were heartened that not one senator, over the course of four days of allotted debate time, spoke in opposition.
Senator Jeff Flake (R-Arizona) did express concern about the addition of language to protect people on the basis of gender identity. Flake indicated he had prepared an amendment that did not make it to the floor, but suggested that his concerns were addressed.
“When I voted for ENDA in the House in 2007, it did not contain the provisions with regard to gender identity,” said Flake. “Those added provisions have concerned me in terms of potential costs of litigation or compliance. I still have concerns, and I hope that as we work through the process and this bill moves onto the House that we can find ways to make sure that employers can implement these provisions in a way that is reasonable and proper.”
Thanking Baldwin for working with his office on “these issues,” Flake said, “I have a better appreciation for what needs to be done and what we can do with this legislation as it moves through the process.”
Baldwin, speaking at the press conference after the first two votes were taken, said “For folks, like myself, in the LGBT community, the opportunity to be judged in the workplace by your skills and qualities, your loyalty, your work ethic, is an important pronouncement for this nation.”
She talked also about the “symbolic impact” of the vote.
“When we something is wrong and it shouldn’t be done,” said Baldwin, “that sends a powerful message to prevent discrimination in the first place.”
“This is a really tremendous milestone,” said Baldwin, “a day I will never forget in my service in the Senate.”
– Reported by Lisa Keen