Terrance Heath

The "ENDA" of Discrimination?

Filed By Terrance Heath | September 06, 2007 1:40 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: election 2008, ENDA, government, politics

Or just another end-run?

It's that time again. Time for another congressional hearing on the Employment Non-Discriminintion Act (ENDA), which would prohibit workplace discrimination baed on sexual orienation; of course, that's with exemptions for religious organizations, the armed forces, businesses with fewer than 15 employees, etc. Sounds like a good idea, doesn't it? My guess is that lots of people don't know that it's not illegal to fire someone from a job solely because of their sexual orientation; even if that individual performs his or her job well and gets nothing but positive reviews.

I remember my first congressional hearing on ENDA, shortly after I moved to D.C. I'd done some support work on the bill (the kind of work any administrative policy assistant does) and I got to attend the hearing. It was certainly exciting. I'd never set foot in the capitol before, and couldn't help but be a little thrilled when Ted Kennedy and John Lewis came down the hall and stopped to shake hands with those of us who were lined up to attend the hearing in support of the bill. It was even exciting to see the opposition show up. But thinking back on it now, it all seems like so much kabuki theater.

Maybe that's because it was over ten years ago that I stood in the hall at the capitol, for a bill that's gotten some hearings and even a Senate vote (in which it was narrowly defeated in a 49-50 vote). And, you'll remember, even as it was heralded as a victory it left a bad taste in the mouths of many, because that "victory" (an interesting way to frame a loss) came at the price of ending a filibuster on DOMA.

On Sept. 10, 1996, the United States Senate came within one vote of passing a version of ENDA that did not include protection for transgender persons.

The vote of 50 to 49, with one absence, against ENDA was seen as a partial victory for gay civil rights because such legislation had never advanced that far since first being introduced in the 1970s.

Yet the near victory came at a high price. With the consent of national gay advocacy groups, Sen. Edward Kennedy (D-Mass.), the lead sponsor of ENDA, struck a deal with Senate Republican leaders that activists say they hope will never again be necessary.

GOP leaders said they would allow ENDA to come up for a vote only if Kennedy and his Democratic allies agreed to end a filibuster blocking a vote on the anti-gay Defense of Marriage Act. Known as DOMA, that legislation sought for the first time to define marriage under federal law as a union only between a man and a woman.

On the same day the Senate narrowly defeated ENDA, it passed DOMA by a vote of 85 to 14. The House also passed DOMA by a lopsided margin. Then-President Bill Clinton, in the midst of his 1996 re-election campaign, signed DOMA into law, drawing expressions of outrage from gay activists.

The disappointment over the close defeat of ENDA and the approval of DOMA was heightened by what ENDA supporters view as a quirk of fate that prevented the Senate from passing the gay rights measure. Sen. David Pryor (D-Ark.), who was expected to vote for ENDA, sent word that he had to rush to Arkansas to assist his son, who was undergoing cancer surgery, and could not be present in the Senate for the vote.

Ten years. For a bill that was whittled out of a larger, omnibus, civil rights bill. Ten years. And it's no closer to passing than it was then. Oh sure, there was some hope early on that it might get another shot at a vote this year. I suppose there's still time for that, but is there any reason to expect more than a repeat of what we got mor ethan ten years ago? (When not only did ENDA get shot down, but DOMA passed?)

Is there any reason to think that, with a presidential election next year and a campaign about to kick into high gear want an ENDA vote? Granted a House vote won't require candidates like Hillary and Obama to cast votes that could come back to haunt them in the general election, should one of them win the nomination. (and one of them almost certainly will), so maybe that will happen. But a House vote and a Senate vote -- let alone passage by both bodies, is almost certainly not likely to happen. And, in the even that it does, Dubya keeps a firm grim on his veto pen until January 2009. I can't imagine him not using it should ENDA drift across his desk.

Can you? That's what I thought.

But, hey, at least we got another hearing right?

Crossposted from The Republic of T.

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Leland Frances | September 6, 2007 2:51 PM

"My guess is that lots of people don't know that it's not illegal to fire someone from a job solely because of their sexual orientation"

except in those states it which it is.

EDNA IS good news. Even a weak EDNA will be immediately useful in larger companies, but take awhile to filter down to smaller ones. It's loopholes exempting christian totalitarian bigots can be challenged in court: "If superstitious groups can't discriminate against national minorities or women, how is it just that they discriminate against us?"

The biggest obstacle of course, is that this country is a feeding ground for the superrich. They own the businesses that discriminate and the politicians who’ll decide EDNA’s scope and enforcement parameters.

So be of good cheer.EDNA, because it'll originate in the Congress of the rich, may be as successful as the DEA is in quashing drugs, or the FBI efforts to stop terrorist attacks, or the FDA is in insuring our health. And I suppose we don’t have to mention mining and bridge inspectors, Veterans Administration doctors or levee maintainers. Or the stunning successes of the US Civil Rights Commissions efforts to stamp out racism and misogyny. Or, well, you get the picture…

Our best use of EDNA is as an organizing tool. We should mount joint campaigns with unions, immigrants, African Americans, women, the aged, etc., to get what we can out of it, demand even more fight to end loopholes. Those efforts by and for ourselves, not Congressional compromise and weakness, will make it a worthwhile law.