With Republican Help, ENDA Passes Senate

The Employment Non-Discrimination Act passed the Senate yesterday but it's unlikely to go much further.

Rainbow Flag Capitol

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.

FILED UNDER: Congress, Economics and Business, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    It’s becoming harder and harder to justify LBGT discrimination for these people. In this case, there isn’t even really a religious reason why they can discriminate in the work place; they can claim marriage is a religions institution but it’s really challenging to find a religious reason for firing a gay person from a fry joint. Essentially, it’s coming down to the bald “But I don’t like it/them” which has NEVER been a legitimate reason. Your job is about work – if you can do the job, then what is the problem? Joe down the aisle has a problem with your lifestyle? Great! Someone else probably has a problem with him, his attitude, his personal hygiene, yadda yadda. No workplace is free of this.

    Your boss and co-workers are not require to like you, respect you, be friends with you, agree with everything about you. They are required to not be cruel to you, hurt or damage you, or push you down for something non-work related. TL;DR don’t be a dick. This is not hard, people.

  2. dennis says:

    If being Libertarian means being able to take away a person’s living just because the employer doesn’t like the manner in which the employee lives, or who the employee is as a person, or any other reason that has no nexus whatsoever with that person’s job performance, then you can keep your Libertarianism.

    It’s cruel and inhumane to fire someone from his/her job just because you don’t like the way they’re living. And that behavior ought to be outlawed. I’m sick of hearing this libertarian argument about the “free market” and “free enterprise” which is merely a justification for heinous treatment of other human beings.

  3. Mikey says:

    Prejudice masquerading as religion has no safe harbor in our legal and constitutional tradition.

    You’d think a political commentator like Rubin would have heard of the Tea Party by now.

  4. JKB says:

    Why is this important? It only impacts less than 5% of the population. And as we learned from Obama and his lie, 5% of the population is nothing to worry about when something bad is imposed upon them.

  5. al-Ameda says:

    For example. former George W. Bush Press Secretary Ari Fleischer penned this piece in favor of ENDA in Politico:

    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.

    He said it perfectly.
    Thank you, Ari.

  6. dennis says:

    Another thing — sorry, this s*** has me bent — I’ll bet this same disgusting and discriminatory rhetoric was used right up to the secession of the southern states.

    Republicans better wise up or they’re going to find themselves on the rearward fringes of a forward-moving society, having no power and no voice in matters that are important to them. Your religion is your religion; practice it as you see fit. When it runs against the norms and rules of the secular society, then you have to adjust. And that’s not compromising your belief and principles, it’s getting along in a diverse society. If you don’t bend, your azz is gonna break…

  7. dennis says:

    There goes JKB, comparing oranges with stinky turds . . .

  8. michael reynolds says:

    Taking this strictly as a political phenomenon:

    1) The Democrats are 100% united.

    2) The GOP is divided.

    This is the front line in the intra-party fight in the GOP. Gay Rights = Young Voters. Gay equality is the single issue that most puts Republicans simply beyond the pale for younger voters. Establishment Republicans want the issue to go away. Tea Party people want to run against gay rights.

  9. al-Ameda says:

    @JKB:

    Why is this important? It only impacts less than 5% of the population. And as we learned from Obama and his lie, 5% of the population is nothing to worry about when something bad is imposed upon them.

    “Obama’s lie”? Very cute talking point. But seriously, no one cares much about discrimination (and it’s probably okay) if the numbers are small enough right? That is a very compelling argument in favor of discriminating against the LBGT population. I’m surprised it is not in Federalist 10.

  10. Gromitt Gunn says:

    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?

    1. Not everyone works for a business (and, in particular, a Fortune 1000 company with a large team of Human Resources).

    2. So…governments are going to set up specific Offices or Agencies just for anti-LGBT employment discrimination, rather than give that work to the existing folks?

  11. An Interested Party says:

    With Republican Help, ENDA Passes Senate

    And with Republican help, ENDA dies in the House…

  12. KM says:

    @JKB:

    Why is this important? It only impacts less than 5% of the population. And as we learned from Obama and his lie, 5% of the population is nothing to worry about when something bad is imposed upon them.

    Great! Then you won’t mind if “something bad was imposed” on the below groups:

    US Military (less then 1% 1,429,995 active and 850,880 reserve)
    Home-schooled (2.95%)
    Baptists (~5.1% 16million)
    Green-eyed (~2-3%)
    Pushing it a little – Post-graduate (~7% for Master’s and ~3% for PhDs)
    Private-schooled (~9%)

    Those are just the few I could did up on the fly (Wiki). Since they are such a small percentage of the total population, we shouldn’t care about their rights, right? I mean, who cares what affects them and why should there be a law to protect them?

  13. Mikey says:

    @KM: As a private-schooled military veteran with a Master’s degree, a green-eyed wife, and a PhD daughter, I’m starting to think you’ve got something against me, KM…

    (On the plus side, at least I’m not a Baptist!)

  14. KM says:

    @Mikey: As three of the above apply to me, I’d be in the same boat. 🙂

    But seriously, I despise the meme that since “only a small group is affected”, their rights are somehow free to be abrogated or denied. I don’t care only 3 people in the country qualify – as long as they are not actively harming anyone, let them be. Whenever someone pulled the 10% card, it tells me it’s not really about religion but about the fact that bigots just unhappy they can’t pick on their chosen target anymore. No true believer in Liberty can justify taking away someone’s rights because of a percentage.

  15. michael reynolds says:

    @KM:

    Yeah, I do believe protecting the minority from the majority is kind of one of the major reasons to have rights.

  16. John D'Geek says:

    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.

    Given the way the votes went down, I’d say there were a lot of “fake nays”. Consider: Senator Orin Hatch voted for it (the sole reason I’m giving this legislation the benefit of the doubt, BTW — he’s conservative & he’s got a good head on his shoulders). Also of note: Senator Toomey (R-PA) was for it; Senator Casey (D-PA) did not vote.

    Aside: this does exactly nothing in “at-will” states as they don’t need a reason to fire you.

  17. Lenoxus says:

    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.”

    Or to put it more briefly: “The problem with the bill is it fails to exempt everyone who dislikes it.”

    It’s one thing to overtly support a universal right to fire people for being gay. But when Dan Coats starts complaining about an insufficiently broad “moral beliefs” exception, he is dishonestly implying that there could be some circumstances where said discrimination would be wrong, and worth legal limitation. Can he name them? No, because all such situations essentially resolve to “moral” objections. Talk about disingenuous.

    Why do so many conservatives these days try having it both ways on gay rights? In the older days, at least they were consistent: homosexuality is a bad deed, like theft or murder, which should be outlawed, and gay people are simply bad people (albeit forgivable by Jesus). Hell, twentieth-century Republicans could consistently support a sort of anti-ENDA that would forbid the hiring of gays by anyone, the same way it’s ostensibly illegal to hire illegal immigrants. (Note to Republicans: Please propose an anti-ENDA.) Nowadays, conservatives try to to suggest that they do acknowledge gays as rights-deserving members of the American tapestry… but, um, well…. the gays aren’t reciprocating, or something.

    Bryan Fischer’s phrase “Big Gay” made me nearly laugh aloud. Isn’t a Big ____ (oil, government, etc) supposed to, at the very least, be taking money from people or otherwise profiting? How does that work here? I probably don’t want to know.

  18. stonetools says:

    With Republican Help, ENDA Passes Senate

    One of the interesting things about Doug is the way he reaches for every crumb of comfort that the Republicans are changing their minds on gay rights, while ignoring the fact that the Democrats are the main driver for gay rights. I think Doug really, really wants to be able to vote for Republicans with a clear conscience, which he can’t do when he knows that the Republicans are so fiercely anti gay rights.
    The reality is that of 44 Republicans in the Senate, 10 voted for ENDA-and 22 voted against, so the Republicans didn’t help at all.
    Moreover, the Republican-led House will kill it. The better heading would have been “Senate Democrats push through ENDA, against massive and continuing resistance by the Republicans”.
    ENDA will eventually pass, not because the Republicans ” help”, but because the Democrats will vote for it when they regain the House-hopefully in 2014. That’s reality.

  19. Mikey says:

    @stonetools: Well, Doug’s right in one sense–without the Senate Republicans who voted for ENDA, it wouldn’t have reached the 60 votes necessary for cloture. So they did help.

    And it takes some political courage for a Republican to vote in favor of ENDA, because it opens them up to a potentially troublesome and expensive primary challenge. So it’s not for nothing that they voted as they did.

    The other 44, sadly, are not surprising. And the fact it will die in the House is all to typical, and sad. But hopefully the 10 in the Senate are the beginning of something.

  20. bill says:

    just what exactly will edna do anyway? essentially, nothing-just.some warm fuzzy self rightist stuff that can’t be enforced… unless someone can find a smidgeon of “class action lawsuit” bs! at the end of the day we hire people that we want to work for us, not like most of you have a clue about that.

  21. michael reynolds says:

    @bill:

    You know, sometimes I think right-wingers are morons. Then I read your comments.

  22. Moosebreath says:

    @michael reynolds:

    And bill’s comments remove all your doubts?

  23. anjin-san says:

    @ JKB

    5% of the population is nothing to worry about when something bad is imposed upon them.

    I have a cancellation letter addressed to me in my hand. It’s not a big deal.

  24. anjin-san says:

    @ KM

    Great! Then you won’t mind if “something bad was imposed” on the below groups:

    US Military (less then 1% 1,429,995 active and 850,880 reserve)

    Well, the GOP just screwed quite a few serving military, vets, and their families with food stamp cuts. Safe to say their concern for the troops does not extend far beyond photo ops and bumper stickers.

  25. Gromitt Gunn says:

    @John D’Geek:

    Aside: this does exactly nothing in “at-will” states as they don’t need a reason to fire you.

    That’s not how it works.

  26. bill says:

    @michael reynolds: did i miss something, are homosexuals a “minority” now? btw, we have enough minorities who get all sorts of help to not have to do anything…..aside from vote. enabling isn’t a good, long term policy when you run out of money.

  27. C. Clavin says:

    Good ‘ol JKB…thinks it’s right to abuse minorities…because he was born a white straight man in America by pure chance.

  28. C. Clavin says:

    So bill…can I assume you are donating your health care and housing subsidy to charity?

  29. James Pearce says:

    @bill:

    did i miss something, are homosexuals a “minority” now? btw, we have enough minorities who get all sorts of help to not have to do anything…..aside from vote. enabling isn’t a good, long term policy when you run out of money.

    Good job, Bill. You can’t even discuss this topic without revealing your racism.

  30. An Interested Party says:

    …at the end of the day we hire people that we want to work for us, not like most of you have a clue about that.

    Who knew it was such grueling work trying to find someone to cut the grass…

    did i miss something, are homosexuals a “minority” now?

    mi·nor·i·ty [mi-nawr-i-tee, -nor, -mahy-] noun
    1. the smaller part or number; a number, part, or amount forming less than half of the whole.
    2. a smaller party or group opposed to a majority, as in voting or other action.
    3. a group differing, especially in race, religion, or ethnic background, from the majority of a population: legislation aimed at providing equal rights for minorities.

    Oh my goodness, why yes they are! You really should try to pick up a dictionary when you can find one…

  31. grumpy realist says:

    Well, if we really want to push this “minority should always obey the majority” theme a bit further, may I remind you that we’ve got a higher percentage of the population as being female than male?

    Which I guess means all you men should be stripped of your rights to vote or own property. Or something.

  32. Tony W says:

    @michael reynolds:

    Establishment Republicans want the issue to go away. Tea Party people want to run against gay rights.

    Which makes one wonder who will be the ones to tell their grandchildren that they fought hard to keep “the gays” from gaining equality.