With Republican Help, ENDA Passes Senate
The Employment Non-Discrimination Act passed the Senate yesterday but it's unlikely to go much further.
As expected, the United States Senate easily passed a bill that would ban employment discrimination against gays, lesbians, and transsexuals in matters of employment:
WASHINGTON — The Senate on Thursday approved a ban on discrimination in the workplace based on sexual orientation and gender identity, voting 64 to 32 in a bipartisan show of support that is rare for any social issue. It was the first time in the institution’s history that it had voted to include gay, lesbian, bisexual and transgender people in the country’s nondiscrimination law.
Despite initial wariness among many Republicans about the bill, 10 of them voted with 54 members of the Democratic majority to approve the measure.
But nothing is guaranteed in the House, where Speaker John A. Boehner has repeatedly said he opposes the bill.
President Obama hailed the Senate action and urged House Republican leaders to bring the bill to the floor for a vote.
“One party in one house of Congress should not stand in the way of millions of Americans who want to go to work each day and simply be judged by the job they do,” Mr. Obama said in a statement. “Now is the time to end this kind of discrimination in the workplace, not enable it.”
Senator Harry Reid, the majority leader, said on Thursday that “the time has come for Congress to pass a federal law that ensures all citizens, regardless of where they live, can go to work not afraid of who they are.” He noted that a vast majority of Americans already think such a law is in place. “Well, it isn’t already the law,” he added. “Let’s do what the American people think already exists.”
Senate Republicans who voted against the bill, known as the Employment Nondiscrimination Act, were muted in their opposition. The first senator to rise and speak against the bill on the floor all week was Dan Coats of Indiana, who said Thursday morning that religious freedoms were at risk, despite the bill’s broad exemption for religious institutions.
Those exemptions, he said, did not go far enough.
In the end, ten Republicans ended up voting in favor of the bill, and those Republicans who opposed it didn’t exactly put up much of a fight. Needless to say, that isn’t sitting well with social conservatives:
The silence from the Senate Republican caucus stunned social conservatives, who have been arguing that the legislation, which provides workplace protections for gay, lesbian, bisexual, and transgender employees, will undermine religious liberty.
“I’m mystified and deeply disappointed, because there are profound constitutional issues at stake here,” said the American Family Association’s Bryan Fischer. “The entire First Amendment is being put up for auction by this bill and it’s inexcusable that no Republican senators are willing to stand up and defend the Constitution.”
“I believe they have been intimidated into silence by the bullies and bigots of Big Gay,” Fischer added. “They know if they speak out … they will be the target of vitriol, the target of animosity, and very likely, the target of hate.”
Groups like the Family Research Council and Ralph Reed’s Faith and Freedom Coalition have been forcefully opposed to the legislation. In a USA Today op-ed, Reed said that the bill was a “dagger aimed at the heart of religious freedom for millions of Americans. The bill’s so-called religious exemption is vague and inadequate.”
Daniel Horwitz, policy director at the Madison Project, blamed Republican leadership for not doing more to fight against the bill and wrote on RedState that “GOP leaders refused to marshal opposition against cloture.”
“With leadership that refuses to fight on anything, leaves the carcass of the fractured conference to Democrat scavenging, and completely surrenders on even the most bedrock social/liberty issues, what is left of the GOP in the Senate?” he wrote.
“We can’t pick and choose when to adhere to the Constitution, and when to cast it aside,” Mr. Coats said. “The so-called protections from religious liberty in this bill are vaguely defined and do not extend to all organizations that wish to adhere to their moral or religious beliefs in their hiring practices.”
The bill includes a number of protections for religious entities, some of which were added this week to gain more Republican support. It now contains a provision that says no federal agency or state or local government that accepts money from the federal government can retaliate against religious institutions for not complying. This would include actions like denying them tax-exempt status, grant money, licenses or certifications.
The institutions that are exempt from the bill include churches, synagogues and mosques that are expressly religious in nature. This would also extend to schools or retail stores affiliated directly with churches, but it would not apply to those that have only loose religious affiliations.
The scene inside the Senate chamber on Thursday was far different from the last time a vote on a gay rights nondiscrimination bill was held 17 years ago. That measure failed by one vote on the same day that a ban on recognizing same-sex marriages overwhelmingly passed. Senators on the floor condemned homosexuality as immoral.
“The drive for same-sex marriage,” Senator Robert C. Byrd, Democrat of West Virginia, said at the time, “is, in effect, an effort to make a sneak attack on society by encoding this aberrant behavior in legal form before society itself has decided it should be legal.”
Times have changed significantly since then, of course, and the fact that a bill banning private discrimination against the LGBT community managed to get ten Republican votes among a very conservative Republican Senate Caucus to support it strikes me as fairly significant. Indeed, I’d suggest that there were likely many “no” votes that were cast for political purposes rather than principle, and you can judge those people as you wish. At the same time, though, it’s interesting to see the number of Republicans who do support the law both inside Congress and outside of it.
For example. former George W. Bush Press Secretary Ari Fleischer penned this piece in favor of ENDA in Politico:
Allowing people to be successful in their workplaces is an essential piece of individual opportunity and liberty. Working for a living is one of America’s freedoms. It’s a virtue to be encouraged — and supporting it is important to the future of the Republican Party. In an era in which the government often punishes hard work and individual success, this bill encourages it.
At its core, the Employment Non-Discrimination Act is about individual liberty. All employees should be treated the same and be judged on their job performance. No one should receive special treatment, and no one should be fired because of their sexual orientation.
Since the 1960s, Congress has passed laws ensuring that employers can’t discriminate on the basis of race, religion or gender — personal characteristics that have nothing to do with how well someone does his or her job. These laws are widely accepted throughout our society. Who among us today would say an employer should have the right to fire someone because of their faith or the color of their skin? The same sense of fairness and respect should apply to the hundreds of thousands of qualified, hardworking Americans covered by ENDA.
After all, everyone has a right to earn a living — including gay, lesbian and transgender Americans.
The other side of the argument, of course, is the libertarian argument that says that employers should be free to hire and fire whomever they please, and that employees should be free to work for, or not work for, whomever they wish. In reality, of course, this hasn’t been the case in the United States since the 1960s when we started passing laws prohibiting discrimination in hiring based on race, gender, ethnicity, and a number of other factors. The bar isn’t universal, of course, as the laws do generally permit employers in the public and private sector to set terms of qualification for employment, such as physical requirements, that may be impossible for, say, women or people who are older to meet, but those standards are typically required to have some rational relationship to the job in question. Outside of those restrictions, though, employers and employees remain relatively free to contract with each other and, outside of things such as employment contracts or union agreements, most Americans are employed on a “At Will” basis and can see their employment terminated at any time for any reason. For the most part, I’d argue that this is how things should be and that restrictions on the ability of employers to hire and fire employees should be limited to only those situations where, because of a history of discrimination or a lack of rational connection between the discrimination and the employment, people have been deprived of their opportunity to, as Fleischer put it, earn a living. I suppose that this makes me a less than pure libertarian on this issue, but the reality is that non-discrimination laws are not going away any time soon so rather than try to repeal them we ought to make sure they aren’t hampering the economy.
So where does that leave ENDA? I addressed some of those issues in a previous post, but basically my concern is that we’re starting to expand these laws, which do indeed intrude on what ought to be private relationships, much too far for reasons that seem purely emotional rather than being based in any real evidence that there’s a significant problem that needs to be addressed. Nonetheless, as I noted, the political argument in favor of ENDA is one that Republicans ought to be careful not to dismiss, as Fleischer points out:
According to a national poll done in September by GOP pollster Alex Lundry on behalf of Project Right Side, a strong majority of Americans (68 percent) said they favored a federal ENDA. Among Republicans, 56 percent nationwide supported the law, while only 32 percent opposed it. Additional statewide polling conducted by conservative pollster Jan van Lohuizen in the battleground states of Pennsylvania, Ohio and New Hampshire confirmed those findings.
It’s a little sad that these questions even need to get put to a poll, but old ways of thinking sometimes take time to change. The time for this change has arrived. In fact, many in the business community, recognizing the importance of a qualified, skilled workforce, are well ahead of the federal government.
Having been in the private sector since the end of the George W. Bush presidency, I’m not surprised. A large majority of Fortune 500 companies already have nondiscrimination policies on their books. And corporate titans like PepsiCo, Pfizer, Marriott, Alcoa, Bank of America and Nike publicly back the bill.
Now is time for the government to catch up so that nondiscrimination laws protect workers at all companies, not just some.
Of course, the counter to that argument is that if business is adopting these policies on its own, then what’s the need for a new set of laws that in the end are only going to enrich lawyers and yet another group of government bureaucrats?
There is one objection that many on the right are raising to this bill that is clearly without merit, and that’s the argument that it will somehow compromise the religious liberty of employers. As Flesicher notes in his piece, the law already contains exemptions for religious organizations just as most employment discrimination laws do. As far of the rest of the argument goes, I find myself agreeing with Jennifer Rubin, who comments:
Is there a religious dictate that says you shall not work with a gay person? That transgender people should be paid less than others doing exactly the same job? We’re not talking about, for example, providing birth control or abortion-inducing medication, which arguably involves the employer in an act that violates his or her conscience. We do not permit, for example, someone whose religion prohibits women from working outside the home to bar women from working. We do not allow the owner of a fast-food chain who believes all adults should be married from excluding single people from his workforce.
Religious discrimination is no trivial matter, and deprivation of religious freedom is serious. But to raise religion as an all-purpose excuse for treating a group of Americansin the workplace differently is inappropriate and makes religion the handmaiden of bias. Prejudice masquerading as religion has no safe harbor in our legal and constitutional tradition. Whatever makes these people uncomfortable is not a protected religious belief exempt from the laws of civil society.
Practically speaking, this Senate victory is a rather pyrrhic one. John Boehner has already announced that he opposes the bill, which likely means that the House will not take up the bill at all. Given what happened in the Senate, though, I wouldn’t be surprised if there was a lot more support for ENDA in that body than many people suspect.